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Full text of "UNITED STATES REPORTS VOL 474"

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UNITED STATES REPORTS 

VOLUME 474 



CASES ADJUDGED 

IN 

THE SUPREME COURT 

AT 

OCTOBER TERM, 1985 

BEGINNING OF TERM 
OCTOBER 7, 1985, THROUGH FEBRUARY 21, 1986 * 

TOGETHER WITH OPINION OF INDIVIDUAL JUSTICE IN CHAMBERS 



HENRY C. LIND 

REPORTER OF DECISIONS 



UNITED STATES 

GOVERNMENT PRINTING OFFICE 
WASHINGTON 1988 



JUSTICES 

OF THE 

SUPREME COURT 

DURING THE TIME OF THESE REPORTS 



WARREN E. BURGER, CHIEF JUSTICE. 
WILLIAM J, BRENNAN, JR., ASSOCIATE JUSTICE. 
BYRON R. WHITE, ASSOCIATE JUSTICE. 
THURGOOD MARSHALL, ASSOCIATE JUSTICE. 
HARRY A. BLACKMUN, ASSOCIATE JUSTICE. 
LEWIS F. POWELL, JR., ASSOCIATE JUSTICE. 
WILLIAM H. REHNQUIST, ASSOCIATE JUSTICE. 
JOHN PAUL STEVENS, ASSOCIATE JUSTICE. 
SANDRA DAY O'CONNOR, ASSOCIATE JUSTICE. 

RETIRED 

POTTER STEWART, ASSOCIATE JUSTICE. 1 



OFFICERS OF THE COURT 

EDWIN MEESE III, ATTORNEY GENERAL. 
CHARLES FRIED, SOLICITOR GENERAL. 2 
JOSEPH F. SPANIOL, JR., CLERK. 
HENRY C. LIND, REPORTER OF DECISIONS. 
ALFRED WONG, MARSHAL. 
STEPHEN G. MARGETON, LIBRARIAN. 



1 Justice Stewart, who retired effective July 3, 1981 (453 U. S. vn), died 
on December 7, 1985. See post, p. XXV. 

2 The Honorable Charles Fried, of Massachusetts, was nominated by 
President Reagan on September 26, 1985, to be Solicitor General; the 
nomination was confirmed by the Senate on October 22, 1985; he was com- 
missioned on the same date and took the oath of office on October 23, 1985. 
He was presented to the Court on November 4, 1985 (see post, p. xxin). 

in 



SUPREME COURT OF THE UNITED STATES 

ALLOTMENT OF JUSTICES 

It is ordered that the following allotment be made of the Chief 
Justice and Associate Justices of this Court among the circuits, 
pursuant to Title 28, United States Code, Section 42, and that 
such allotment be entered of record, effective nunc pro tune 
October 1, 1981, viz.: 

For the District of Columbia Circuit, WARREN E. BURGER, Chief 
Justice. 

For the First Circuit, WILLIAM J. BRENNAN, JR., Associate 
Justice. 

For the Second Circuit, THURGOOD MARSHALL, Associate 
Justice. 

For the Third Circuit, WILLIAM J. BRENNAN, JR., Associate 
Justice. 

For the Fourth Circuit, WARREN E. BURGER, Chief Justice. 

For the Fifth Circuit, BYRON R. WHITE, Associate Justice. 

For the Sixth Circuit, SANDRA DAY O'CONNOR, Associate 
Justice. 

For the Seventh Circuit, JOHN PAUL STEVENS, Associate 
Justice. 

For the Eighth Circuit, HARRY A. BLACKMUN, Associate 
Justice. 

For the Ninth Circuit, WILLIAM H. REHNQUIST, Associate 
Justice. 

For the Tenth Circuit, BYRON R. WHITE, Associate Justice. 

For the Eleventh Circuit, LEWIS F. POWELL, JR., Associate 
Justice. 

October 5, 1981. 



Pursuant to the provisions of Title 28, United States Code, 
Section 42, it is ordered that the Chief Justice be, and he 
hereby is, assigned to the Federal Circuit as Circuit Justice, 
effective October 1, 1982. 

October 12, 1982. 



(For next previous allotment, see 423 U. S., p. vi.) 



IV 



PROCEEDINGS IN COMMEMORATION OF THE 

50TH ANNIVERSARY OF THE OPENING 

OF THE SUPREME COURT BUILDING 

MONDAY, OCTOBER 7, 1985 



Present: CHIEF JUSTICE BURGER, JUSTICE BRENNAN, 
JUSTICE WHITE, JUSTICE MARSHALL, JUSTICE BLACKMUN, 
JUSTICE POWELL, JUSTICE REHNQUIST, JUSTICE STEVENS, 
and JUSTICE O'CONNOR. 



THE CHIEF JUSTICE said: 

We are in special session today to take note of the fiftieth 
anniversary of the opening of this building; and, as is not en- 
tirely uncommon, the Court is ahead of some of the lawyers 
who will be attending the proceedings. 

We have the privilege of having three distinguished Ameri- 
can lawyers here to take note of these events. We begin 
with Mr. Erwin Griswold, former Solicitor General of the 
United States and former Dean of Harvard Law School. 
Mr. Griswold. 



Mr. Griswold: MR. CHIEF JUSTICE and may it please the 
Court: 

This Court and its bar live in what I believe is called a sym- 
biotic relationship. Each benefits from the presence of the 
other. At any rate, the bar hopes that is an accurate 
statement. 

The bar has its role, but it is not very cohesive. There is 
no published list of the membership of this Court's bar and no 
organization of it. Indeed, no one knows how many mem- 
bers there are. The Clerk's office tells me that no applica- 
tions were required until 1925. 



vi 50TH ANNIVERSARY PROCEEDINGS 

Since then there have been applications, and these have 
been numbered serially. At the present time the number of 
such applications is somewhat over 165,000. But there is no 
record of those who have died or retired from active practice. 
As a guess, I would say that there are about 75,000 lawyers 
in this country who are members of this Court's bar. 

It is a privilege to speak on their behalf and to express the 
appreciation of the bar for the important role which this 
Court plays in our constitutional and legal structure. 

We do know one thing: The first member of the bar of this 
Court was Ellas Boudinot of New Jersey, who was admitted 
in February 1790. Of course, there was no one to move his 
admission, but this Court was flexible. It had not yet estab- 
lished procedures for the filing of credentials. 

For the first few admissions, the Court apparently relied 
on judicial notice. The judges knew who were the qualified 
lawyers and they were admitted. After about a year, the 
Court turned to the Attorney General, Edmund Randolph. 
Though he was never admitted to practice before the Court, 
he was treated as an officer of the Court. 

And before long, the practice was established of admission 
to the bar on motion of persons already admitted. Under 
the first admissions rule, adopted on February 5, 1790, the 
Court made the provision, which continues to this day, that 
applicants for admission shall have been admitted for "three 
years past in the Supreme Court of the state to which they 
respectively belong." 

The formula also provided then, as it did throughout the 
nineteenth century, that the private and professional charac- 
ter of the applicants "shall appear to be fair." As our lan- 
guage evolved, the word "fair" acquired a double meaning, 
and the use of the phrase sometimes produced a laugh in the 
courtroom. So the wording was changed, and for many 
years in the twentieth century the sponsor was required to 
say that he vouched for the applicant. Under the rule as it 
now stands, he affirms that the applicant is of good moral and 
professional character. , 



50TH ANNIVERSARY PROCEEDINGS vn 

All motions for admission were made in open court until 
about 15 years ago. Now, in accordance with modern times, 
the whole procedure can be done by mail. 

Under the first rule for admission, the applicant was re- 
quired to elect whether he would practice as an attorney or as 
a counselor, and he could not practice as both. If this rule 
had continued, the British distinction between solicitors and 
barristers would have been established here, and we might 
have a narrower group today which could be recognized as 
the bar of the Supreme Court. 

Indeed, the Circuit Court for the First Circuit provided for 
four degrees: attorneys, counselors, barristers, and ser- 
geants. Charles Warren in his "History of the American 
Bar" refers to an order by Justice Story made in that court in 
1812 admitting on his own motion Jeremiah Smith and Jere- 
miah Mason to the degree of sergeant at law, and as far as I 
know they are the only lawyers who have been sergeants at 
law in this country. 

Many great lawyers have appeared before the Court. 
John Marshall appeared in one case in the late 1790's, unsuc- 
cessfully. Others who may be mentioned are Luther Martin, 
Caesar Rodney, and Roger B. Taney. These were the days 
of oratory, and by the 1830's Daniel Webster achieved his 
long continued eminence before the Court. 

His appearances were often great social events, with large 
crowds both of men and women attending the Court sessions, 
for often several days were devoted to a single case. In 
those days Webster argued several hundred cases, more than 
have been presented before the Court by any other person in 
its history. 

Interestingly enough, the member of the bar with the sec- 
ond largest total of arguments has left little trace. He was 
Walter Jones, admitted to practice in 1796, and the United 
States Attorney in the District of Columbia from 1802 to 
1821. 

In later years, he often acted in association with Daniel 
Webster. Among; others, he argued the case of Martin 



vni 50TH ANNIVERSARY PROCEEDINGS 

against Hunter's Lessee and McCulloch against Maryland. 
He also appeared in the first hearing of the Charles River 
Bridge case, where he was opposed by Daniel Webster. 

We ought to have more information about Walter Jones, 
and perhaps the Supreme Court Historical Society can find a 
way to make him better known. 

The history of the Court and its bar is of course inter- 
twined with the history of the country. The details are 
being developed in the great history of the Court which is 
being prepared under the Oliver Wendell Holmes bequest. I 
will refer to only two events, both reflecting the Court's 
interrelationship with the slow but steady progress which the 
country made during the nineteenth century with two funda- 
mental problems. 

The first black lawyer to be admitted to the bar of the 
Supreme Court was Dr. John S. Rock, who was born of free 
parents in New Jersey in 1825. He was admitted on Febru- 
ary 1st, 1865, just short of his fortieth birthday. Before 
then he had been a teacher, a dentist, and a doctor. He had 
moved to Boston in 1853 and he was one of the founders of 
the Republican Party in Massachusetts. 

In 1858 he wanted to go to France for medical treatment, 
but he was refused a passport on the ground that he was not 
a citizen. The Massachusetts legislature then passed a law 
providing for state passports I'm not sure this Court would 
accept that today and this was accepted in France. 

A year or so later, Dr. Rock returned to Boston and began 
to read law. He was admitted to practice in Massachusetts 
in September 1861 and he was admitted to practice in this 
Court on February 1, 1865. Note that date shortly after 
the appointment of Salmon P. Chase as Chief Justice. 

This came before the final termination of the Civil War and 
before the adoption of the Thirteenth, Fourteenth, and Fif- 
teenth Amendments and with the Dred Scott case still on the 
books. As the New York Tribune reported: "By Jupiter, the 
sight was good." It must have been one of the dramatic 
moments in this Court's history, at least in retrospect. 

Rock's admission was moved by Senator Charles Surnner. 
The newspaper reporter observed that "The assenting nod of 



50TH ANNIVERSARY PROCEEDINGS EX 

the Chief Justice dug the grave to bury the Dred Scott 
decision." 

I am glad to record, too, that one of the persons who 
encouraged Dr. Rock was George L. Ruffin, whom we be- 
lieve to be the first black graduate of the Harvard Law 
School. 

The next event to which I will refer was the admission of 
the first woman to the Supreme Court bar. In 1872, this 
Court had refused to interfere with the action of the Supreme 
Court of Illinois, which denied admission to Myra Bradwell, 
who was the wife of a judge in Chicago. She relied in this 
Court on the equal protection clause of the recently adopted 
Fourteenth Amendment, but was unsuccessful. It may be 
mentioned that Chief Justice Chase was the sole dissenter 
from this conclusion. 

It was less than seven years later, though, that Belva A. 
Lockwood became the first woman admitted to practice be- 
fore the Court. This was on March 3rd, 1879. So quick was 
the change of view that this evoked no opinion from any 
member of the Court. Indeed, Mrs. Bradwell, who was de- 
nied admission in 1872, was finally admitted when she applied 
again in March 1892 on motion of Attorney General W. H. H. 
Miller. 

Alice 0'Don.nell has pointed out in her paper in the 1977 
Yearbook of the Supreme Court Historical Society that it 
took 41 years or until 1929 before the first 100 women became 
members of the bar of the Court. Some of the early 
admittees had great careers in the law. I will mention only 
Florence Allen, who became the first woman judge of a con- 
stitutional federal court; Mabel Walker Willebrand, who was 
Assistant Attorney General under President Hoover; and 
Helen Carloss, who had a long and distinguished career in 
the Tax Division of the Department of Justice and was 
an extraordinarily persuasive lawyer in the federal courts, 
including this Court. 

A great increase in the number of women lawyers has oc- 
curred in the past 15 years. In another 15 years, if present 
trends continue, perhaps 30 percent of the members of the 
bar of this Court will be women. This will surely have an 



x 50TH ANNIVERSARY PROCEEDINGS 

important impact, though it is not as yet clear just what that 
impact will be. 

Is there a bar of this Court? It is hard to say. There 
have been periods when there was a relatively small group of 
lawyers who were widely recognized as leaders of the bar of 
this Court. They were the orators of the nineteenth cen- 
tury, starting with Daniel Webster and continuing through 
John G. Johnson of Pennsylvania. 

There was a bar in the 1920's and 1930's, when such law- 
yers as Charles Evans Hughes, Owen D. Roberts, John W. 
Davis, George Wharton Pepper, and William D. Mitchell 
made frequent appearances before the Court. By this time, 
oratory was pass. The presentations were less flowery, 
but they were mellifluous. 

As a young lawyer, I was fascinated by John W. Davis and 
his skill at crossing thin ice with great artistry, reaching the 
other side safely before it was fully recognized that the ice 
was so thin. 

There is one case which I recall which brought together 
three of these giants. This was United States against 
George Otis Smith in 1932. It involved the question 
whether the Senate could reconsider the confirmation of 
a presidential nomination after the President had acted 
on it. 

The Senate retained John W. Davis as its counsel. Attor- 
ney General William D. Mitchell appeared for the United 
States, essentially representing the President. And George 
Wharton Pepper represented Mr. Smith. That was surely 
one of the high points of advocacy in this century. 

With the great increase in ease and speed of travel since 
World War Two, there is much less concentration on work 
before the Court, although it has never been highly concen- 
trated since the days of Daniel Webster and Walter Jones. 
This is inevitable in a country as large and diverse as this 
country is. 

It might have been different if the original division be- 
tween attorneys and counselors had prevailed. It is hard to 



50TH ANNIVERSARY PROCEEDINGS xi 

think, though, that such an arrangement, while having some 
advantages, would have been a good one overall. In any 
event, it is really impossible to have such distinctions in this 
country. 

There is one group which has long provided the backbone 
of the Supreme Court bar. That is the Solicitor General 
and his staff and his associates in the Department of 
Justice. This office has long maintained a high standard 
and a great tradition. It appears in one way or another in 
nearly half of the cases which are heard on the merits by 
the Court and in a high percentage of all applications for 
review. 

I should also refer to the considerable number of cases 
which have been presented here by what we now know as 
special interest groups. I think, for example, of the work 
done in the early days of the NAACP, which was represented 
here by one of the country's great lawyers, Charles Hamilton 
Houston, work which was carried on later with great ability 
by Thurgood Marshall. And I may mention the work done 
by lawyers representing groups interested in the rights of 
women, of whom Ruth Bader Ginsburg was an outstanding 
example. 

The bar of this Court has a somewhat difficult role. As I 
have indicated, it is scattered and diverse. It can never be 
assembled, nor is it possible to take a consensus of the bar. 
Nevertheless it is clear, at least to me, that the Court could 
not get along without it. 

Yet, the demands on the Court are such that the bar finds 
difficulty in making its full contribution. Fifty years ago 
when the Court first met in this building, it heard arguments 
five days a week for a total of about 75 days a year. Now it 
hears arguments for about 45 days during the year. 

Fifty years ago, the time made available for oral argu- 
ments was an hour on each side and there were frequent sub- 
stantial allowances of additional time. Now the time allotted 
is 30 minutes on a side and additional time is, shall I say, a 
very scarce commodity. 



XII 50TH ANNIVERSARY PROCEEDINGS 

This inevitably presents problems for the oral advocate and 
requires a wholly different type of argument from that which 
was customary even 50 years ago. The lawyer today can 
rarely deal with his case as a case. He has to pick out cer- 
tain salient points and hope that, with the welcome question- 
ing, he will have time to deal with the matters he regards as 
vital. 

I think that the briefs today are on average much better 
than they were 50 years ago, probably more improved than is 
commonly recognized. But oral argument often remains a 
difficult and somewhat tantalizing field. 

This Court moved into this great building 50 years ago 
today. According to the newspaper articles, the first words 
spoken by Chief Justice Hughes in this courtroom were: "Are 
there any admissions?" Thus was the bar recognized, and 
thus has it been recognized at every session since. 

The Court heard no arguments on the opening day. There 
were, however, many admissions, including Harold B. 
Willey, Chief Deputy Clerk of the Court, and Mary 
Agnes Quinn, the Docket Clerk in the Solicitor General's 
Office. 

The first business before the Court was a motion made, 
appropriately enough, by Solicitor General Stanley F. Reed. 
The first case was argued before the Court a week later on 
October 14th. That was the case of Douglas against Wil- 
cutts. It was a tax case, and it was, too, the first case whose 
decision was announced in this room. It is reported in 296 
U. S., page 1. 

Just as we are hearing these days in cases before the Court 
about non-bank banks, verbally a rather odd concept, I think 
I may well close these remarks by referring to the non-bar 
bar. For the brief for Douglas in that case was written 
by a young lawyer who had graduated from the Harvard Law 
School in 1932 and had not yet completed the three years re- 
quired for admission here. Thus his name, though on the 
brief, does not appear in the United States Reports, since he 
was a member of the non-bar bar. 



50TH ANNIVERSARY PROCEEDINGS xm 

He was, though, well worthy of the assignment. His 
name later became well known here. He was Harry A. 
Blackmun. 



CHIEF JUSTICE BURGER: Thank you, Mr. Griswold. 
Mr. Attorney General. 



Attorney General Meese: MR. CHIEF JUSTICE and may it 
please the Court: 

It is a privilege for me to be here today representing the 
Department of Justice and the Executive Branch of the Gov- 
ernment in these proceedings. 

Fifty years ago on the date that we are commemorating 
here, this nation was in the midst of a great Depression. To 
borrow Tom Paine's language of an earlier critical period 
in our history, it was a crisis that truly did try men's 
souls. 

The problems of that era were deeper than economic de- 
spair and Depression. The deepest problem, the greatest 
threat of that time, was that our very system of government 
had been called into question. It was a time where our fun- 
damental precepts of democracy were being challenged from 
without as well as from within. 

Our great national economic tragedy came at a time when 
new and foreign ideologies were attacking the very soul 
and spirit of free and democratic institutions around the 
world. The communist and fascist movements abroad were 
gaining strength and sought to promote themselves as the 
dominant force in the world, at the expense of liberty and 
peace. 

In the midst of an increasingly confused and confusing 
world, the structure we honor today arose here in our 
nation's capital. As though to serve as a moral beacon to 
all the world, the new building of the Supreme Court stood 



xiv 50TH ANNIVERSARY PROCEEDINGS 

forth, dedicated to that most basic principle of civilization, 
the rule of law. 

Equal justice under law, that is what we as a people stood 
for then, as we had since the founding of our Republic; and 
that is what we as a people stand for today. 

Now as then, this Court in many ways represents our 
national vision of a just and civilized world. As an impartial 
and independent institution under our Constitution, the 
Supreme Court, symbolic of our entire Judiciary, gives prac- 
tical effect to the idea of the rule of law. 

In The Federalist Papers, as in other writings during our 
founding period, this Court was deemed to be an essential 
part of that new science of government which had led to the 
framing of the Constitution. Alexander Hamilton confessed 
that under the previous Articles of Confederation the lack of 
a judiciary was a crowning defect. After all, he said, 'laws 
are a dead letter without courts to expound and define their 
true meaning and operation." 

Indeed, Hamilton went on to say that "[t]he complete 
independence of the courts of justice is peculiarly essen- 
tial in a limited Constitution." He concluded that "[a] 
constitution is, in fact, and must be regarded by the 
judges, as a fundamental law." Without this understanding 
and without an independent judiciary to guard the lines and 
the limits of the original Constitution, all the "particular 
rights or privileges" of that Constitution "would amount to 
nothing." 

The magnificent structure in which we are now gathered 
symbolizes both the necessary independence and the con- 
stitutional integrity of the Supreme Court. It stands 
apart from, yet is near to, the homes of the other two 
branches. 

It is a serious and a solemn place. In terms of those who 
wrote in The Federalist Papers, there is no wielding of the 
sword nor control of the purse strings here. There is, as the 
founders prescribed, only judgment. 



50TH ANNIVERSARY PROCEEDINGS xv 

I congratulate this Court as it celebrates its first 50 years 
in this magnificent marble building, a temple of reason, a 
temple of justice, and a temple of law. 

Thank you. 



CHIEF JUSTICE BURGER: Thank you, Mr. Attorney 
General. 

The Court recognizes Mr. William Falsgraf, the President 
of the American Bar Association, to speak for the legal pro- 
fession as a whole. Mr. Falsgraf. 



Mr. Falsgraf: MR. CHIEF JUSTICE and may it please the 
Court: 

I am truly delighted to bring the congratulations and best 
wishes of the American Bar Association and in fact all of the 
lawyers of America as the Supreme Court celebrates 50 
years in this magnificent hall. As spokesman for the Ameri- 
can legal profession, I want to express on behalf of my col- 
leagues across the country our profound respect for the 
Court, both before and after it obtained this permanent 
home. 

We know that for some 144 years the Court performed its 
constitutional duties with dedication and often with brilliance 
despite the lack of an adequate and dignified quarters. Nev- 
ertheless, there is indeed symbolic importance in its having 
an impressive and dignified home. 

Our Association has recognized and acknowledged that fact 
since the first foundation stone of this building was laid some 
53 years ago. For we recognize that appropriate physical 
surroundings are essential in order for the Court to serve as 
our nation's primary symbol of the rule of law. 

Generations of Americans and guests from around the 
world have visited this building and been overwhelmed by its 
grace and by its dignity. This is indeed a hallowed place, an 
appropriate acknowledgment by the people of the United 



xvi 50TH ANNIVERSARY PROCEEDINGS 

States of the critical role which the third coequal branch of 
government plays in our constitutional form of government. 
The special feeling that we in the ABA have for this build- 
ing was first given expression by leaders of the Association 
who were intimately involved in the construction and dedica- 
tion of this edifice. The energy and the leadership with re- 
spect to the construction of this building of course came from 
Chief Justice William Howard Taf t, who was a former Presi- 
dent of the American Bar Association as well as a former 
President of the United States of America. And inciden- 
tally, Chief Justice Taf t was a fellow Ohioan, of which I am 
personally quite proud. 

Unfortunately, Chief Justice Taf t died in 1930, before his 
dream of a permanent home for this Court could take shape. 
But his widow was present at the cornerstone laying of this 
building in 1932. This was indeed an appropriate recognition 
of the leading role which Chief Justice Taf t played in the 
planning for and the ultimate approval for the design and con- 
struction of this temple of the law. 

All three speakers at the laying of the cornerstone had 
served or were serving as President of the American Bar As- 
sociation. Guy Thompson of St. Louis, who represented the 
legal profession, was of course then Acting President of the 
American Bar Association. The Honorable John W. Davis, 
who spoke for the bar of the Supreme Court, had served as 
President of the American Bar Association in 1922-23. And 
Chief Justice Hughes himself, speaking for the Court, had 
been ABA President in 1924-25. 

The text of these speeches were among the articles that 
were placed within the cornerstone of this building. In his 
remarks, President Thompson predicted that this building 
would be "a monument to justice," and how prophetic those 
comments have become. 

John W. Davis called this place "the abode of the peace- 
maker" and "the house of refuge for all such as are 
oppressed." 



50TH ANNIVERSARY PROCEEDINGS XVII 

In response, Chief Justice Hughes said: "This building is 
the symbol of the distinctive character of the Republic, the 
symbol of its faith. It suggests permanence, not the perma- 
nence of stone and steel but of an idea, a testimonial to an 
imperishable idea of liberty under law. " 

Well, tremendous changes have swept over this land in the 
past 50 years, and yet the dedicatory sentiments of rny 
predecessors, like the beauty and the grace of this building, 
are as relevant and apt today as they were 50 years ago. 

As we look to the Court's next 50 years and beyond, it is 
entirely appropriate for us to pause and to do as we are 
today, acknowledging that which is past. When this Court 
was established, constitutional government was indeed a 
revolutionary idea, and perhaps still is in other parts of the 
world. The form of nearly every other government which 
was then in existence almost 200 years ago has changed so 
drastically as to be virtually unrecognizable to their subjects 
of two centuries ago. 

Many of the fundamental tenets of scientific knowledge 
which were the presumption of that age have been found to 
be flawed when examined under the light of newly discovered 
truths involving matter, energy, space, and time. The in- 
dustrial revolution has come and gone, the atomic age has 
arrived. And yet, our nation and the Constitution under 
which it operates have not only endured, they have thrived. 

How fitting it is, then, that we celebrate today the tangible 
symbol of that durability which is this building. The Ameri- 
can people owe a debt beyond counting to the Supreme Court 
of the United States as the definitive interpreter of the 
Constitution, our highest law. 

This Court is not only the refuge for all such as are 
oppressed, it is the bulwark of freedom for every citizen, 
regardless of his or her station in life. For just as the 
cornerstone serves as the support for the walls and the roof 
of this building, so the Constitution serves as the support 
for our Republic and the fundamental freedoms that have 
allowed our citizens to make it great. 



xvni 50TH ANNIVERSARY PROCEEDINGS 

Let us give thanks, then, first to the architects of this 
building and all of those who labored to make that design a 
reality. But let us give greater thanks to the architects of 
our Constitution and those who labor within these laws to 
make the blessings of freedom secured by that Constitution a 
continuing reality. 



CHIEF JUSTICE BURGER: Thank you, Mr. Falsgraf. 

As Mr. Griswold has noted in his excellent statement, 
when the Court gathered here precisely 50 years ago today at 
12:00 noon it did not undertake to hear oral arguments, but 
formally opened the Term and then retired to the Conference 
Room and undertook to deal with the accumulation of peti- 
tions for certiorari, jurisdictional statements, and motions 
that had accumulated during the summer. 

In recent years, the pressure of the docket has led the 
Court to hold the conferences on the summer accumulation in 
the last week of September so that we could begin, as we did 
this morning, at 10:00 o'clock to hear oral arguments. 

The tortoise, which Cass Gilbert employed in much of his 
design in this Building, is of course, a more ancient symbol of 
justice than the blindfolded lady for both justice and the law 
are like the tortoise, rather than the swift hare of the fable. 

Yet some changes have occurred, as some of the speakers 
have commented. In 1935, as Mr. Griswold said, the Court 
allowed one hour for each side and sometimes more, and was 
able to hear two cases each day or ten cases a week with a 
conference on Saturday. This was changed about 15 years 
ago when we limited the oral argument to 30 minutes on each 
side. Now we hear 12 cases a week, leaving Thursday free 
for the Justices to prepare for the Friday Conference. On 
Saturday and on Sunday, the Justices are still engaged in the 
work of the Court. The time allowed for oral argument is 
now very different from an earlier day. 

In the Dartmouth College case, for example, after some 
days of oral argument, we can well imagine that Chief Justice 



50TH ANNIVERSARY PROCEEDINGS Xix 

Marshall may have said to Daniel Webster: "Mr. Webster, 
you have now had three and a half days; do you think you will 
finish this week?" Contrast that, if you will, with the leg- 
endand it has not been verified that when the red light 
came on in Chief Justice Hughes' time, he would stop a 
lawyer in the middle of the word "if." 

Of course, we are much more liberal now. We allow a 
lawyer to finish the sentence that is unfolding when the 
red light goes on, provided, of course, the sentence is not 
too long. 

Sometimes, as close observers of the Court observed, we 
Justices do not always fully agree about everything, and that 
was true when the Chief Justice began his efforts to have this 
Building erected. Some of the Justices felt it was not a good 
idea for the Court to lose regular contact with the leaders of 
Congress whose support was needed for whatever it was that 
the Court needed. 

There may have been some merit to that view, but Chief 
Justice Taft was concerned more, as the speakers have indi- 
cated, with matters other than the comfort and the needs of 
the Justices. He was profoundly concerned with the need 
for a visible symbol of the independence of the third branch of 
government as a separate and a coequal branch. 

The differing views of the Justices at that time was illus- 
trated in a story, perhaps a legend, of 1935 that one Justice 
is reported to have said that he expected each member of the 
Court would be provided with an elephant to ride into the 
Building mounted on that elephant much like a rajah. Just 
how those elephants were going to negotiate those steep 
stairs out in front of the Building has never been made clear. 

Habits of judges and Justices, as with lawyers, change 
slowly. Having worked in their homes with their clerks and 
secretaries at hand, there was no great rush on the part of 
the Justices to occupy this splendid building, with luxurious 
three-room suites provided for each Justice. 

Chief Justice Hughes himself continued to work out of his 
home for the most part and came to Court, as he put it, 



xx 50TH ANNIVERSARY PROCEEDINGS 

chiefly to hang his hat and also to take care of the rapidly 
increasing administrative duties of that office. 

When Hugo Black was confirmed as a member of the Court 
he had the choice of any one of eight suites in the Building, 
and he wisely selected a very choice corner suite and occu- 
pied that space throughout his entire tenure on the Court. 

With all his foresight, Chief Justice Taf t and the architect 
were not able to fully anticipate the future needs of the 
Court, and so about 15 years ago, Justices' chambers were 
enlarged by converting each of three suites into two and then 
creating three sets of new chambers. 

This required that the Clerk of the Court move from this 
floor to the ground floor. Previously, Chief Justice Warren 
had moved the Administrative Office of the United States 
Courts out of this Building in order to meet the growing 
needs of the Court itself. 

Electric typewriters supplanted the manual power ma- 
chines, and, in turn, they were recently replaced by word 
processing machines, which then in turn supplanted the hot 
lead typesetting process used for preparing the opinions of 
the Court. 

The classical grandeur of this Building has been enhanced 
by the advent of the Office of the Curator of the Court. Miss 
Kathy Hetos, the first Curator, served from 1974 to 1976 and 
was succeeded by Miss Gail Galloway, the present Curator. 
Working with that man-of-all-skills, Mr. Edward Douglas, a 
long-time member of the Supreme Court staff, the Lower 
Great Hall has become a museum of the history of the Court 
and the history of the Building itself. The work of these peo- 
ple can be observed by those of you who take the time to see 
the special exhibit that has just been completed on Chief 
Justice Taf t in the Lower Great Hall. 

In these efforts to make this great symbol of justice come 
alive, the cooperation of Mr. George White, the Architect of 
the Capitol, has been very important. Mr. White turned to 
architecture only after graduating from the Harvard Law 
School, and naturally has a sensitive appreciation of both the 
work of the Architect, Cass Gilbert, and of the law. 



50TH ANNIVERSARY PROCEEDINGS XXI 

The Attorney General and the President of the American 
Bar Association have alluded to world events occurring soon 
after the Court sat here, some of them before the Court sat 
here. Few statesmen of Europe and probably fewer in this 
country fully understood the meaning of the rise of men like 
Mussolini and Hitler and the expansion of communism and 
the other dictatorships of the world of the 1930's. 

Whether Chief Justice Taf t saw the trends in Europe as 
undermining justice and were to destroy established systems 
of freedom, we do not know. What is important was that at 
a great cataclysmic epoch in history, when dictators first 
destroyed independent courts and thus left no barriers to 
protect free speech and free press and other freedoms, this 
Building became a symbol, as the Attorney General and Mr. 
Falsgraf have said, not only to Americans but to the whole 
world, a symbol of the role and the function of a truly inde- 
pendent judiciary. 

So, as we pause for an hour to take note of this fiftieth year 
of a great monument to justice and to freedom under law, we 
do well to remember both the events of interest in that half 
century and the meaning in a larger sense, of this edifice as a 
symbol of a system that has endured for two centuries. 
With all of the shortcomings of human institutions, our sys- 
tem remains a beacon and a guide to people everywhere who 
seek freedom. 

In laying the cornerstone of the Building, Chief Justice 
Hughes said: "This Republic endures and this Building is the 
symbol of its faith." 

Mr. Griswold, Mr. Attorney General, Mr. Falsgraf, on be- 
half of the Court I thank you for your part in this proceeding, 
the record of which will become part of the permanent 
records of this Court. 



PRESENTATION OF THE SOLICITOR GENERAL 
SUPREME COURT or THE UNITED STATES 

MONDAY, NOVEMBER 4, 1985 



Present: CHIEF JUSTICE BURGER, JUSTICE BRENNAN, 
JUSTICE WHITE, JUSTICE MARSHALL, JUSTICE BLACKMUN, 
JUSTICE POWELL, JUSTICE REHNQUIST, JUSTICE STEVENS, 
and JUSTICE O'CONNOR. 



Mr. Deputy Solicitor General Lawrence G. Wallace pre- 
sented the Honorable Charles Fried, Solicitor General of the 
United States. 

THE CHIEF JUSTICE said: 

Mr. Solicitor General, the Court welcomes you to the per- 
formance of the important office that you have assumed, to 
represent the government before this Court. Your commis- 
sion will be duly recorded by the Clerk. 



XXIII 



DEATH OF JUSTICE STEWART 

SUPREME COURT OF THE UNITED STATES 

MONDAY, DECEMBER 9, 1985 



Present: CHIEF JUSTICE BURGER, JUSTICE BRENNAN, 
JUSTICE WHITE, JUSTICE MARSHALL, JUSTICE BLACKMUN, 
JUSTICE POWELL, JUSTICE REHNQUIST, JUSTICE STEVENS, 
and JUSTICE O'CONNOR. 



THE CHIEF JUSTICE said: 

It is my sad duty to announce that our distinguished col- 
league and friend, Justice Potter Stewart, died Saturday, 
December 7, 1985, in Hanover, New Hampshire. 

Justice Stewart served as a Judge of the United States 
Court of Appeals for the Sixth Circuit from 1954 to 1958 
when he was appointed to this Court to succeed Justice Har- 
old Burton. He took office on October 14, 1958, and served 
as an Associate Justice for 23 years until his retirement in 
1981 at the close of the 1980 Term of Court. He had served 
his country for four years in the United States Navy in World 
War II. 

His appointment to the Court of Appeals in 1954 came at 
the age of 39, making him the youngest Federal Judge in the 
country at that time. His opinions on a wide range of sub- 
jects appear in nearly 100 volumes of the United States Re- 
ports covering a period of great social, political and economic 
development reflecting the turmoil, upheavals and changes 
taking place throughout the world. 

Those changes had a marked impact on the kinds of issues 
coming into all courts including this Court. In meeting these 
issues in the setting of the dramatic changes in the world at 
large, Justice Stewart exhibited a steadiness of purpose, 
comprehension and grasp of contemporary law and its ante- 
cedents in the Common Law. 

xxv 



xxvi DEATH OF JUSTICE STEWART 

His work as a Justice rejected the popular labels and 
categorizations of judges, Adhering to precedent he sought 
to resolve cases on narrow grounds leaving related but unre- 
solved issues to the future. He was particularly concerned 
that the rights of privacy of person and home, protected 
by the Fourth Amendment, be observed by all levels of gov- 
ernment, Few legal issues concerned him more than the 
protection of the rights envisaged by those who drafted the 
Constitution and the Bill of Rights, 

We mourn Justice Stewart's passing but we will not forget 
the comradeship and friendship that overshadowed the ines- 
capable differences arising in the processes of resolving the 
difficult issues that find their way to this Court. 

I speak for all members of the Court in expressing our 
profound sympathy to Mrs, Stewart and her family, 

In due course, the traditional memorial service of the Bar 
of this Court and the Court will be conducted in this Chamber 
to pay our respects more fully to Justice Stewart. 



TABLE OF CASES REPORTED 



NOTE: All undesignated references herein to the United States Code are 
to the 1982 edition. 

Cases reported before page 801 are those decided with opinions of the 
Court or decisions per curiam. Cases reported on page 801 et seq. are 
those in which orders were entered. The opinion reported on page 1301 
et seq. is that written in chambers by an individual Justice. 



Page 

Abbeville School Dist.; Wharton v. 1086 

Abbitt v. Saied 997 

Abdullah v. New York 919 

Abdul-Rahim v. Hardcastle 1010 

Abernathy v. United States 854 

Abington Memorial Hospital; Heckler v. 863 

Abraham u United States 853 

Abrams v. Roman 864 

Abrams; Roman v. 860 

Acadian Metropolitan Code Authority; Kaltenbach v. 859,906 

Accident Fund v. Baerwaldt 1020 

Accordino v. Board of Review, Ohio Bureau of Employment Services 841 

Acosta v. Kraco, Inc 1022 

Action Real Estate v. El Paso Bd. of Realtors 1102 

Adams v. Brierton . . 1010 

Adams v. Graham 835 

Adams v. Lykes Brothers S.S. Co 840 

Adams v. Mcllhany 1101 

Adams v. United States 971,1013 

Adams v. Wainwright . . 1073 

Ad Hoc Committee for Akwesasne Rights v. Reynolds Metals Co, 1021 

Adkins v. Times-World Corp 1109 

Administrator of Veterans Administration; Pappanikolaou v. . 851 

Administrators of Tulane Educational Fund u Cooley 820 

Adventurers Whitestone Corp. v. New York City . ... 935 

A. E. R. u Florida . . 1011 

Aetna Life Ins. Co. v. Lavoie 811 

Affiliated Capital Corp.; Gulf Coast Cable Television Co. u .... 1053 

XXVII 



xxvni TABLE OF CASES REPORTED 

Page 

Afro- American Police Assn. , Inc. v. United States 1080 

Aguilera v. Cook County Police and Corrections Merit Bd 907 

Ahmed v. Hughes Aircraft Co 1067 

Aho v. California 995 

Aiello v. Massachusetts 919 

Aiken; Roach v. 1039 

Aiken; Yates v. 896 

Air Line Pilots Assn.; Ozark Air Lines, Inc. v. 903 

Air Line Pilots Assn. ; Peterson v. 946 

Air Line Stewards & Stewardesses v. American Airlines, Inc 1059 

Air Transport Assn. u United States 1105 

Ajac Transmission Parts Corp. v. Transgo, Inc 1059 

Akerman u Board of Higher Ed. of New York City 846 

Akron Airport Post No. 8975; Ohio v. 1058 

Alabama; Bell v. 1038 

Alabama v. Callahan 1019 

Alabama; Campbell v. 1021 

Alabama; Chatman v. 1022 

Alabama; Clemmons v. 837 

Alabama; Colonial Pipeline Co. v. 936 

Alabama; CoweU v. 1035 

Alabama; Felder v. 976 

Alabama; Fleming v. 857 

Alabama; Grayson v. 865 

Alabama; Hamer v. 1033 

Alabama; Harrell v. 935 

Alabama; Heath u 82 

Alabama; Kennedy v. 975 

Alabama; Meadows v. 828 

Alabama; Montgomery v. . 904 

Alabama; Scanlan v. 1035 

Alabama; Terry v. 826 

Alabama Dept. of Corrections v. Glover 806 

Alabama State Personnel Bd.; James v. 825 

Alaska; Ames v. 951 

Alaska; Atlantic Richfield Co. v. 1043 

Alaska; Goodlataw v. 813,996 

Alaska; Painter u 990 

Alaska v. United States 968 

Alaska; United States v. . 1044 

Albany; Call v. 1057 

Albers; Whitley v. 809 

Alberts; Carroll v. 1013 

Alcoa v. Myers 811,901 



TABLE OF CASES REPORTED xxix 

Page 

Alderman v. Georgia 911,1000 

Aldridge v. Morris 1062 

Aleem u General Felt Industries, Inc 813 

Aleem v. Municipal Court of Cal. , Los Angeles County 832 

Aleem v. Spigner 832 

Alexander, In re 977 

Alexander Grant & Co. ; Kahn v. 1058 

Alexander Grant & Co. ; Tiffany Industries, Inc. v. 1058 

Alford; Carey v. 856 

Allain; Papasan v. 1004 

All American Life & Cas. Co. v. Oceanic Trade Alliance Coun. Intl 819 

Allbritton Communications Co. v. National Labor Relations Bd. . . 1081 

Allen v. California 1068 

Allen v. Illinois 979,1080,1100 

Allen v. Kinloch 946 

Allen v. Merit Systems Protection Bd 834 

Allen v. National Labor Relations Bd 1101 

Allen v. Pennsylvania 842 

Allen v. United States 983,1021 

Allen Orchards v. United States 818 

Allied Bond & Collection Agency v. Massachusetts ... 991 

AUinder; Hedges v. 892 

Allsbrook; Strader v. 834 

Almon v. Sharp 1010 

Along! v. United States . . 906 

Altemose Construction Co.; Building & Constr. Trades Council v 898 

Amadi v. United States .... 1064 

Aman; Plummer v. 1058 

Amato; Western Union International, Inc. v. . . 1113 

Ambrose v. Sperry Rand Corp . . . 947 

Amend v. Poff .... .... 849 

American Airlines, Inc.; Air Line Stewards & Stewardesses v. . . . 1059 

American Airlines, Inc. v. United States 1001 

American Bar Endowment; United States v. .... . . 1004 

American Cetacean Society; Baldrige v. ... 1053 

American Cetacean Society; Japan Whaling Assn. v. . . 1053 

American College of Obstetricians and Gynecologists; Thornburgh v. 809 

American College of Physicians; United States v. . . . . 1017 

American Hospital Assn. ; Heckler v. 810 

American Ins. Assn. v. Chu . .... .... . . 803 

American Lutheran Church, Inc. ; Thomsen v. 802 

American Medical International, Inc.; Scheller v. ... ... 947 

American Methyl Corp. v. Motor Vehicle Mfrs. Assn. of U. S. 1082 

American Mut. Ins. Co.; Minnesota Timber Producers Assn. v. 1059 



xxx TABLE OF CASES REPORTED 

Page 

American Petrofina Co, of Tex. u Oil Workers 943 

American S.S. Co. u Obad 848 

American Telephone & Telegraph Co. ; David v. 832 

Ames v. Alaska 951 

Amoco Chemicals Corp.; Day v. 1065 

Amuny v. United States 818 

Anchorage Mun. Zoning Bd. of Examiners & App. ; Spendlove v. . . 895 

Andersen v. Ciba-Geigy Corp 995 

Anderson v. Liberty Lobby, Inc 811 

Anderson v. Stagner 857 

Anderson v. United States 998,1068 

Anderson County v. United States 919 

Andino v. McCotter 839 

Angelastro; Prudential-Bache Securities Inc. v 935 

Angelone; Pickard v. 922 

Aniero Concrete Co.; United Pacific Ins. Co. u 1033 

Ann Arbor; Hodges v. 859 

Ann Arbor; Johnston v. 947 

Anndep S.S. Corp.; Collins v. 820 

Anschuetz & Co. v. Mississippi River Bridge Authority 812 

Ansonia Bd. of Ed. v. Philbrook 1080 

Anthony v. United States 1004 

Antone v. United States 818 

Antonelli v. Illinois 1103 

Apex Construction Co.; Sac & Fox Tribe v. 850 

Appleatchee Riders Assn. ; Cheadle v. 849 

Appleby; Sarracen v. 845 

Appoloney v. United States 949 

Aragon; Pappy, Kaplon, Vogel & Phillips v. 1054 

Aragon v. Teamsters 902 

Aragon v. United States 1054 

Araiza v. United States 846 

Arango v. Compania Dominicana de Aviacion 995 

Arango; Florida v. 806,1015 

Arbelaez v. United States 907 

Arcara v. Cloud Books, Inc 978 

Arcara v. Village Book & News Store 978 

Argus Chemical Corp. v. Fibre Glass-Evercoat Co 903 

Ariyoshi v. Robinson . . 1018 

Arizona; Bracy v 1110 

Arizona; Gannon v. 1010 

Arizona; Hartford v. 863 

Arizona; Hennessy v. 1067 

Arizona; Hooper v. 1073 



TABLE OF CASES REPORTED 

Page 

Arizona; Hoosman v. 841 

Arizona; Martinez- ViUareal v. 975 

Arizona; Poland v. 816,943 

Arkansas; Bailey u 866 

Arkansas; Garrett v. 823 

Arkansas; Thomas v. 821 

Arkansas; Toland v. 945 

Arkansas; Westbrook v. 1006 

Arkansas; Williams v. 844 

Arkansas; Young v. 1070 

Armstrong; Froneberger v. 1023 

Armstrong Blum Mfg. Co. ; Chambers u 833 

Arn; Thomas v. 140,1111 

Arney v. Black 1084 

Arnold v. Reagan 835 

Arrow Northwest, Inc. v. Greater Houston Transportation Co 903 

Arrow Northwest, Inc. v. Yellow Cab Co 903 

Ascani v. Hughes 1001 

Asmussen v. Austin 803 

Aspero v. Shearson American Express, Inc 1026 

Associated Gas Distributors; Pennzoil Co. v. 847 

Association. For labor union, see name of trade. 

Atiyeh; Thacker v. 854 

Atkins, In re 808 

Atkins v. Rivera 1018 

Atlanta Gas Light Co. v. Equal Employment Opportunity Comm'n 968 

Atlantic Richfield Co. v. Alaska 1043 

Attorney General; Corley v. 837 

Attorney General; Martin v. 862 

Attorney General of Ga. v. Hardwick 943 

Attorney General of N. J. v. Morrison ... 815,917 

Attorney General of N. J.; Williams v. 838 

Attorney General of N. Y. v. Roman 864 

Attorney General of N. Y.; Roman v. 860 

Attorney General of N. C. v. Gingles 808 

Attorney General of N. C.; Nantahala Power & Light Co. u 1018 

Attorney Grievance Comm'n of Md.; Jacob v. .... 905 

AT&T Technologies, Inc. v. Communications Workers 814 

Atwell v. United States 921 

Aubert; Stanley v. 981 

Auger; Gregory v. . , 1035 

Augustyniak v. Koch 840,1015 

Auld Co. v. Chroma-Graphics Corp 825 

Aurand v. United States 850 



xxxn TABLE OF CASES REPORTED 

Page 

Aurora Civil Service Comm'n; Bara v. 995 

Aurora Community Hospital; Heckler v. 863 

Ausley v. Mitchell 1100 

Austad v. Risley 856 

Austin; Asmussen v. 803 

Austin v. Tennessee 1073 

Austintown Bd. of Ed.; Shuba v. 1033 

Authier v. Ginsberg 888 

Automobile Workers v. Brock 825,900 

Automobile Workers; Taylor v. 1081 

Autorino v. Superintendent, Arthur Kill Correctional Facility 849 

Avant Garde Condominium Assn., Inc.; Zerman v. 895,1077 

Avery u United States 1055 

Avondale Shipyards, Inc. v. Rosetti 820 

Award Service, Inc.; Northern Cal. Retail Clerks Union & Food 

Employers Joint Pension Trust Fund v. 1081 

Awrey v. Progressive Casualty Ins. Co 920 

Ayerst Laboratories; Helminski v. 981 

Babcock & Wilcox Co.; Sims v. 836 

Bad Foot v. Bolt 855,1000 

Baer; DuFresne v. 817 

Baer; Owens v. 842 

Baerwaldt; Accident Fund v. 1020 

Baerwaldt; Food & Commercial Workers v. 1059 

Baig v. United States 1103 

Bailey v. Arkansas 866 

Bailey v. Buckeye Cellulose Corp 863,1078 

Bailey v. Delaware 873 

Bair v. Trailer Train Co 1021 

Bair; Whitley v. 989 

Baker, In re 906 

Baker; Baskerville u 832 

Baker; Boiling v. 824 

Baker v. General Motors Corp 899 

Baker v. United States 839,945,1077 

Baker Coal Co. v. United States 945,1077 

Bakko; Newman u 833 

Balair, Ltd. v. United States 902 

Balchaitis v. United States 901 

Baldrige v. American Cetacean Society 1053 

Ball v. United States 950 

Ballam v. United States 898,1078 

Baltezore v. Concordia Parish Sheriff's Dept 1065 

Baltimore Gas & Electric Co. v. Heintz 847 



TABLE OF CASES REPORTED xxxm 

Page 

Baltimore & Ohio R. Co.; Pittsburgh Terminal Corp. v, 919 

Bandemer; Davis V. 991 

Bankers & Shippers Ins. Co. of N. Y. v. Marshall 1056 

Bankers Trust Co. v. Metge 1072 

Bankers Trust Co.; Metge v. 1057 

Bank of America, N. T. & S. A.; F. I. Corp. v. 850 

Bank of America, N. T. & S. A.; Fluidyne Instrumentation v.. . . 850 

Bank of Ore.; Independent News, Inc. u 826 

Bara v. Aurora Civil Service Comrn'n 995 

Baraldini D. United States 841 

Barclays American/Credit, Inc. v. Quiller 1031 

Barclays American/Credit, Inc. ; Quiller v. 1031 

Barker u E. I. du Pont de Nemours & Co 976 

Barker u Morris 1063 

Barlow v. Brewery Workers 1009 

Barnes u Henderson 841 

Barnes; Wilson v. 907 

Barney v. Halperin 828 

Barnhill v. United States 829 

Baron v. Meloni 1058 

Barrett v. United States 923 

Barrett v. U. S. Customs Service 812,984 

Barrientos v. United States 1062 

Barry; Currie v 1060 

Barry v. United States 1064 

Baxton v. California 841 

Barton; McQueen v, 1085 

Basin Electric Power Cooperative v. Midwest Processing Co. . . . 1083 

Baskerville v. Baker 832 

Bates v. Kerr ... . 830 

Batson u Kentucky .... 812,942 

Baxter v. Georgia .... 935 

Baxter V. United States 1085 

Bazemore u Friday . . ... 978,1080,1099 

Beachley Investments, N. V.; Koscot Interplanetary, Inc. u 1103 

Beacom; Exotic Coins, Inc. v. 892 

Beans v Black .... . . . . 979 

Beard v. United States 907 

Bearden; Bray v. . . . 841 

Beary v. West Publishing Co 903 

Beck v. Georgia . 872 

Beckham v. Harris . . . 903 

Beckley; Fahey v. . . 1001,1097 

Bedford; Greif v. . .... 907 



xxxiv TABLE OF CASES REPORTED 

Page 

Becker v. Commissioner 822 

Belco Petroleum Corp.; Chevron U. S. A. Inc. v. 847 

BeU v. Alabama 1038 

BeU v. Illinois 852 

BeU v. United States 853 

BeUefonte Underwriters Ins. Co.; Fine v. 826 

Belle Fourche Pipeline Co. v. United States 818 

Belletire; Parks v. 918 

Bellin, In re 891 

Belmont v. Dole 1055 

Belz; Brown v. 983 

Bender u Williamsport Area School Dist 942,1002 

Bennett; Chula Vista City School Dist. v. 1098 

Bennett v. Illinois 858 

Bennett v. United States Trust Co. of N. Y 1058 

Benson; Cole v. 921 

Benson v. United States 858 

Benton; Pruessner v. 1033 

Benz v. United States 817 

Berger & Montague, P. C.; Zimmer Paper Products Inc. v. 902 

Bergman v. United States 945 

Berkeley; Fisher v. 898 

Berkic v. Crichton 826 

Bernard v. Bernard 1103 

Bernard v. Nickels 1065 

Bernard v. Warden . . 1104 

Berry; Pursue Energy Corp. v. 828 

Bertoniere u United States 1012 

Best; Taylor v. 982 

Bethel School Dist. No. 403 v. Fraser 814,1046 

Bethlehem Steel Corp.; Davis v. 1021 

Bethlehem Steel Corp.; McFarland v. 844 

Betka, In re 1003 

Betka v. Smith 860,1015 

Betka v. West Linn 836,1015 

Bewley v. Oklahoma 829 

Bezold u United States 1063 

Bezotte v. Madison County Comm'rs 1023 

B & G Crane Service, Inc. v. Dolphin Titan International, Inc. . . 904 

Bieker v. Kansas 904 

Billings v. Smith 859 

Binladen BSB Landscaping v. M.V. "Nedlloyd Rotterdam" . ... 902 

Bint v. Creative Forest Products 803 

Bippus v. Teamsters 1007 



TABLE OF CASES REPORTED xxxv 

Page 

Bishop v. Davis 950,1077 

Bishop v. International Paper Co 821 

Bisig v. United States 905 

Bixler v. Indiana 834 

Black, In re 814 

Black; Arney v. 1084 

Black; Beans v. 979 

Black; Day v. 922 

Black; Greer v. 837 

Black; Pittman v. 982 

Black v. United States 1022 

Black v. Wyche 1059 

Blackburn; Henderson v. 1023 

Blackburn; Hobbs v. 838 

Blackburn; Lewis v. 902 

Blackburn; Michigan v. 811,989 

Blackmon v. Observer Transportation Co 864 

Blackwell; Taylor v 847 

Blackwood v. United States 1020 

Bladel; Michigan v. 810,942 

Blair v. Chafin 840 

Blair v. H. Truman Chafin Legal Corp 840 

Blair; Missouri v. 1049 

Blairco, Inc. v. Chafin 840 

Blairco, Inc. v. H. Truman Chafin Legal Corp 840 

Blake; Kemp v. 943,998 

Blake v. Nassau County Dept. of Social Services 862 

Blandon-Gaviria v. United States 908 

Blankfield v. Texas State Bd. of Dental Examiners 980 

Blau; Del Monte Corp. v. . . . . 865 

BLC Ins. Co.; Westin, Inc. v. . ... 844 

Block; Bohemia, Inc. v. 919 

Block v. Castillo 994 

Block; North Side Lumber Co. v. . . . 931 

Block v. Payne .... 815,942 

Block v. United States . . . . . . 1034 

Blocker v. Fetherston . . . 831 

Blue Cross & Blue Shield of Mich. v. Milliken . . . 805 

Boag v. Raines 1085 

Boardman v. United States Automobile Assn. 980 

Board of Attorneys Professional Responsibility of Wis.; Gibson v. 976 

Board of Ed. of Chama Valley Independent School Dist. ; Rhodes v. 802 
Board of Governors, FRS v. Dimension Financial Corp. . . . 361,897 

Board of Governors, FRS; U. S. Trust Corp. u . 1098 



xxxvi TABLE OF CASES REPORTED 

Page 

Board of Governors of State Colleges & Univs.; Rubin v. 1104 

Board of Higher Ed. of New York City; Akerman v. 846 

Board of Regents; Colson v. 835 

Board of Regents of Univ. of Mich.; Cawley v. 839,1015 

Board of Regents of Univ. of Wis. System; Namenwirth v. 1061 

Board of Review, Ohio Bur. of Employment Services; Accordino v. 841 

Board of Trustees, State Insts. of Higher Learning; Merwine v. 823 

Board of Zoning Adjust, of Atlanta; Corey Outdoor Advertising v. 802 

Boating Industry Assns. v. Moore 895 

Bobis v. Illinois 827 

Bock v. New York 996 

Bodine v. Department of Transportation 923,1027 

Boeing Co.; Eschler v. 1082 

Boeing Co.; Schoenborn v. 1082 

Boeing Vertol; Koutsoubos v. 821 

Bogarat v. Emerson 1058 

Bogard u Kentucky 843 

Boggins v. United States 834 

Bohemia, Inc. v. Block 919 

Bolger; Burden v. 1012 

Boiling v. Baker 824 

Bolt; Bad Foot u 855,1000 

Bondi v. Illinois 836 

Bonham v. Texas 865 

Bonjorno; Kaiser Aluminum & Chemical Corp. v. 811 

Bonner u Commissioner 923 

Bonner; Moore u 827 

Bonneville Power Admin. ; Cal. Energy Res. Cons. & Dev. Comm'n v. 1005 

Bonwich v. Bonwich 848 

Booker u Wainwright . 975 

Boone v. United States . 861 

Borntrager v. Stevas 1008 

Borough. See name of borough. 

Borys v. United States 1082 

Boulding, In re . . . . 1044 

Bourbeau; Wright v. 1083 

Bourns, Inc.; Owens v. ... 1038 

Bovee v. United States 854,1015 

Bowden v. Idaho Dept. of Health and Welfare 805,1000 

Bowden v. Kemp . 891 

Bowen u Foltz ... 1035 

Bowen; Georgia Dept. of Medical Assistance v. 1059 

Bowen; Humana Inc. v. 1055 

Bowen u Owens 1046 



TABLE OF CASES REPORTED xxxvii 

Page 

Bowen; Reeves v. 1064 

Bowen; Triplett v. 1104 

Bowers v. Hardwick 943 

Bowers v. Wisconsin 837 

Bowker; Ross v. 851 

Bowles, In re 1079 

Bowman v. Cincinnati Mine Machinery Co 855 

Bowring u Mills 838 

Boyd; Heller u 982 

Boykin u Reagan Administration 921 

Bracy v. Arizona 1110 

Bradfield; Stop-N-Go, Inc. v. 805 

Bradley; Sanford v. 906 

Bradman; Bryant v. 862 

Brady u Pettit 845 

Brakefield v. United States 953 

Brancewicz v. C. E. Lummus Co 1085 

Brand v. New York 828 

Brantner u Wicker 831 

Bray v. Bearden 841 

Bray u Dodge County 983 

Breeze v. United States 875,1015 

Bressler v. United States . 1082 

Brewery Workers; Barlow v. 1009 

Brick v. McSurely 1005 

Bridgeport v. United States ... 905 

Brierton; Adams v. 1010 

Brisbon v. Illinois 908 

Britt v. United States 829 

Brock; Automobile Workers v. 825,900 

Brock; DialAmerica Marketing, Inc. v. . . 919 

Brock; Master Printers of America v. 818 

Brock v. Pierce County . . .. . 944,1046,1099 

Brock v. Transportation Union . 3 

Brock v. United States 856 

Brocklesby; Jeppesen & Co. v. . ... . 1101 

Brodis v. Detroit Public School Administrators . . . 835 
Brofford v Morris . . ... ... 872,1000 

Bronger v. Office of Personnel Management . 1101 

Brookhaven National Laboratory; Golm v. . . 1059 

Brotherhood. For labor union, see name of trade. 

Brown v. Belz . . 983 

Brown v. Bruno . . ... 861 

Brown v. Erman . . . ....... 824 



xxxvin TABLE OF CASES REPORTED 

Page 

Brown v. Ferro Corp 947 

Brown v. Florida 1034,1038 

Brown u Francis 865 

Brown; Jones v. 1068 

Brown; Kendricks v 1069 

Brown; Khaliq u 1110 

Brown v. Leavitt 836 

Brown v. Newsome 982 

Brown v. New York 855 

Brown u United States 823,840,842,905,908,990,1036,1064 

Brown u Wainwright 1084 

Brown v. Washington 1058 

Brown v. Washington Metropolitan Area Transit Authority 858 

Brown v. Woods 1084 

Brown i>. Zant 860,990 

Brown-Forman Distillers u N. Y. State Liquor Auth. 814,977,1079,1099 

Brownstein v. Director, 111. Dept. of Corrections 858 

Bruner v. Parker 827 

Bruno; Brown u 861 

Bruno v. New Orleans Dept. of Police 805 

Bruscantini v. United States 904 

Bryan County Bd. of Ed.; Rabon v. 855 

Bryant v. Bradman 862 

Bryant v. United States 953,1036,1054 

Buchanan v. Rees .... 1010 

Buckeye Cellulose Corp.; Bailey v. 863,1078 

Buckley v. Commercial Federal Savings & Loan 1068 

Buena Vista Distribution Co.; Patterson v. 1013 

Building & Constr. Trades Coun. of Phila. v. Altemose Constr. Co. 898 

Bulloch v. Pearson 1048,1086 

Bullock; Cabana v. 376,897 

Bullock u Director, Dept. of Corrections 1023 

Bunch v. United States 1067 

Bunker v. California . 837 

Buratt; Capital City Press, Inc. v. 817 

Burche u Caterpillar Tractor Co 971,1027 

Burden v. Bolger 1012 

Burden v. Kemp 865 

Bureau of Prisons; Hernandez v. . ... 1034 

Burger; Grace v. 1026 

Burger; Holway v. 949 

Burger u Kemp 806 

Burlington Industries, Inc.; Gilbert v 978 

Burlington Industries, Inc.; Roberts v. 978 



TABLE OF CASES REPORTED xxxix 

Page 

Burlington Northern Inc. v. Herold 888 

Burlington Northern R. Co. v. Cherner 1005 

Burnett v. United States 857 

Burnette v. United States 813 

Burnley, In re 997 

Burnley v. Superintendent of Capron Correctional Unit 1011 

Burnside v. White 1022 

Burr v. Florida 879 

Burriss v. Northern Assurance Co. of America 821 

Burrus; Hijar v. 816,1016 

Burt; Connolly v. 1004 

Burton v. Delanie 859 

Burton v. Diamond 1035 

Burton v. Evan 1035 

Burton v. Ford 858 

Burton v. Lockhart 1011,1112 

Burton v. Reed 949,1077 

Burton v. Sargent 1011,1112 

Burton v. Smith 997,1077 

Burton v. Stouts 856 

Burton v. Wilson 997,1077 

Busby v. Holt 1068 

Busby v. Louisiana 873,1015 

Bush v. United States 1012 

Butler v. Federal Communications Comm'n 832 

Butler v. McCotter 855 

Butler v. South Carolina 1094 

Bykofsky v. Hess ... . . . 995 

Byron Jackson Pump Co.; Clark v. 840,1000 

C.; Department of Social Services of Rusk County v. . . . . . 971 

Cabana v. Bullock 376,897 

Cain; McCormick v. 1010 

Cain; West v. . 1066 

Calder Race Course, Inc. v. Division of Pari-Mutuel Wagering . . 802 

Caldwell; Mark v. 945 

Caldwell; Williams v. . . ... 945 

Calhoun v. Ohio 983 

California; Aho v. 995 

California; Allen v. . . 1068 

California; Barton v. 841 

California; Bunker v. . . 837 

California v. Callahan . . . . 1081 

California v. Federal Communications Comm'n ... . . . 809,1002 

California; Geringer v. . 1065 



XL TABLE OF CASES REPORTED 

Page 

California; Hamilton v. 1016 

California; Hampton v. 825 

California; Jones v. 821 

California; Kenny v. 860 

California; Mintz v. 980 

California; Morton v. 1060 

California; Parra v. 1023 

California; Peters v. 804 

California; Quick v. 823 

California; Ramirez v. 1043 

California; Roehler v. 1021 

California; Romer u 1035 

California; Sade u 994 

California; Stevens v. 1059 

California; Sturm -y 906,1009 

California v. Walnut Properties, Inc 903 

California Coastal Comm'n; Remmenga v. 915,1027 

California Dept. of Transportation v. Naegele Outdoor Adv. Co. 1003 

California Energy Res. Cons. & Dev. Comm'n v. Bonneville Pow. Ad. 1005 
California ex rel. Cooper v. Mitchell Bros. Santa Ana Theater . . 948,1077 

California Federal Savings & Loan Assn. v. Guerra 1049 

California Institution for Men; Jones v. 950 

California Jockey Club; Program Engineering, Inc. v. 1007 

California State Bar; Lupert v. 916 

California State Bd. of Equalization u Chemehuevi Tribe 9,1077 

California State Lands Comm'n v. United States 1005 

California State Personnel Bd.; Gilbert v. 841 

Call u Albany 1057 

CaUahan; Alabama u 1019 

CaUahan; California v. 1081 

Calpin v. United States 1084 

Calver v. Owners of Ridgecrest Mobile Home Park 1105 

Camacho, In re 991,1099 

Camden County Bd. of Ed.; Simmons v. 981 

Camden Fire Ins. Assn. v. Justice 936 

Cameron v. Oregon 1069 

Campbell u Alabama . . 1021 

Campbell v. Department of Transportation .... .... .... 1084 

Campbell u Kentucky . . . 856 

Campbell v. Maine 1032 

Campbell v. Ohio Dept. of Justice 840,990 

Campbell; Reed v. 1018 

Campman v. United States 1064 

Cannin v. United States 1067 



TABLE OF CASES REPORTED XLI 

Page 

Cannon; Davidson v. 344,898 

Cannon; Hayes v. 903,1027 

Cannon v. Texas 1110 

Cantero-Rodriguez v. United States 856 

Cantone v. ScuUy 835 

Canyoneers, Inc. v. Hodel 846 

Capalbo; Pompano Beach v. 824,1000 

Cape v. Francis 911,1027 

Capital Cigar & Tobacco Co. ; Chou v. 833 

Capital City Press, Inc. v. Buratt 817 

Caprito v. Caprito 1020 

Caprito v. Mayhew 1020 

Carbalan v. Vaughn 1007 

Cardenas-Montilla v. United States 952 

Cardinal Resources, Inc. v. Eddie S.S. Co 823 

Carey u Afford 856 

Carey v. Minnesota 1010 

Cargffl, Inc. v. Monfort of Colo., Inc 1031,1049 

Carigon v. Michigan 854 

Carl E. Widell & Sons v. Ellison 1083 

Carlin; Cohran v 1033,1111 

Carmen; Cuddy v. 1034 

Carr v. Holland 1083 

Carr v. Hutto 1019 

Carradine; Moeller v. . . 804 

Carrier; Sielaff v. . . 898 

Carrigan v. Lashley 834,990 

Carrillo v. United States 847 

Carrion v. New York City Health and Hospitals Corp 842,1015 

Carroll v. Alberts . . . . ... 1013 

Carroll v. Illinois 1066 

Carroll Co. v. Morrison Assurance Co. ... ... . . 1060 

Carrollo v. United States . . . . 1062 

Carson v. Spanish Lake Assn. ... . ... 829 

Carson v. Turner .... 944 

Carter; Mukau 895,1027 

Carter v. Spaniol . ... . . ... . 998 

Carter v. United States . ... . . 836,861,862 

Cartwright v. Oklahoma . . . 1073 

Carver; Raspaldo v. . . . 853 

Cash Currency Exchange, Inc.; Fryzel v. . . . . 904 

Castaldi v. United States . . . . 826 

Castaneda v. Christensen 841 

Castillo; Block u . ... .... . . 994 



xui TABLE OF CASES REPORTED 

Page 

Castorina v. Lykes Brothers S.S. Co 846 

Caswell v. Pennsylvania 1024 

Cataldo u Meskill 916 

Caterpmar Tractor Co.; Burchev. 971,1027 

Catholic Bishop of Chicago; F. E. L. Publications, Ltd. v. 824 

Catrett; Celotex Corp. v. 944,1047 

Cauble v. United States 994 

Cauthen-Bey v. United States 862 

Cavros v. Connecticut 904 

Cawley u Board of Regents of Univ. of Mich 839,1015 

Caylor v. Red Bluff 1037 

CBS, Inc.; Redco Corp. v. 843 

C & C Metal Products Corp. v. Defiance Button Machine Co. . . 844 

Ceasar v. Merrill Lynch & Co 844 

Cedar u United States 859 

Celotex Corp. v. Catrett 944,1047 

C. E. Lummus Co.; Brancewicz v. 1085 

Centex Corp. ; Futura Development Corp. v. 850 

Central & Southern Motor Freight Tariff Assn. v. United States . . 1019 

Cerbone v. Conway 1100 

Certain Unnamed Prospective Defendants v. Newspapers, Inc. . . 1061 

C. E. Services, Inc.; Control Data Corp. v. 1037 

C F & I Steel Corp.; Turner v. . . 1058 

Cha; Wax-nick v. 920 

Chafin; Blair v. 840 

Chafin; Blairco, Inc. v. 840 

Chafin Legal Corp.; Blair v. .... 840 

Chafin Legal Corp.; Blair, Inc. v. 840 

Chagra u United States 922 

Chambers v. Armstrong Blum Mfg. Co ... 833 

Chambers v. Kentucky 1021 

Chambers; Texas v. 864 

Chandler u Lord 853,1078 

Chaney v. Maryland 1067 

Chapman v. Luna . 947 

Chapman v. Smith Barney, Harris Upham & Co. ... ... . 850 

Chapman v. State Bar of Cal 848 

Charles; Diamond u 809 

Chartier, In re 896 

Chatman v. Alabama 1022 

Chatman v. Marquez 841 

C. H. B. Foods, Inc. u English 807 

Cheadle v. Appleatchee Riders Assn 849 

Cheeseman v. United States 991 



TABLE OF CASES REPORTED XLIII 

Page 

Chemehuevi Tribe; California State Bd. of Equalization v. 9,1077 

Chemtrol Adhesives, Inc.; Morgan Adhesives Co. v. 843 

Cheng; GAF Corp. v. . . . . 809 

Cherner; Burlington Northern R. Co. v. 1005 

Chesapeake City Police Dept.; Humphries v. 831 

Chesapeake & Potomac Tel. Co. of Md.; Public Service Comm'n v. . 942 

Chevron U. S. A. Inc. v. Belco Petroleum Corp 847 

Chicago; Thoele v. 1056 

Chicago; Tomczak v. 946 

Chicago Tribune Co. v. Johnson 915,1027 

Chief Justice of United States; Grace v. 1026 

Chief Justice of United States; Holway v. 949 

Childress v. United States 996 

Chindawongse v. United States .... 1085 

Chitty v. United States 945 

Chosid, In re 1044 

Chou v. Capital Cigar & Tobacco Co 833 

Chrans; Lucien v. 1067 

Chris Craft Corp.; Templeman v. 1021 

Christensen; Castaneda v. 841 

Christensen v. Equitable Life Assurance Society 1102 

Christian v. Veterans Administration 826 

Christmann & Welborn v. Department of Energy 901 

Chroma-Graphics Corp.; D. L. Auld Co. v. 825 

Chu; American Ins. Assn. v . 803 

Chu; Trump v. . 915 

Chula Vista City School Dist. v. Bennett 1098 

Ciba-Geigy Corp.; Andersen v. . ... . . 995 

Cicirello v. New York Telephone Co 823 

Cincinnati Mine Machinery Co. ; Bowman v. 855 

City. See name of city. 

Clark v. Byron Jackson Pump Co. 840,1000 

Clark; Rose v. . 816,1047 

Clark; Sestric v. . 1086 

Clark v. South Carolina 998 

Clark v. United States . . 831 

Class; New York v. . . 809,1031 

Clear Pine Mouldings, Inc. v. National Labor Relations Bd 1105 

Cleavinger v. Saxner . 193 

Clem; Erlbaum v. . . 849 

Clemente v. United States . . .1101 

Clements v West Virginia . ... . 857 

Clemmons v. Alabama . 837 

Cleveland; Firefighters v. . . 816,1047 



XLIV TABLE OF CASES REPORTED 

Page 

Cleveland Heights u Smith 1056 

Clopper v. Merrill Lynch Relocation Management, Inc 823 

Cloud Books, Inc.; Arcara u 978 

Coats & Clark, Inc.; Gay v. 903 

Cochran v. United States 1062 

Cochrane u Simor 847 

Coder v. Fulcomer 832 

Coder v. Grine 907 

Cody, In re 977 

Cody v. De lorio 1065 

Cody v. Solem 833 

Cohran v. Carlin 1033,1111 

Cola v. United States 1023 

Colberg, Inc.; Earl's Pump & Supply Co. v. 820 

Cole v. Benson 921 

Cole v. Fulcomer 921 

Cole v. McEvers 995 

Coleman v. Delaware 950,1077 

Coles, In re 1048 

Collard v. Flower Hill 827 

Collins v. Anndep S.S. Corp 820 

Collins v. Illinois 935,1027 

Collins; Lockhart v. 1013 

Collins v. United States 922,1024,1027 

Collins Co. v. Tectonics, Inc 848 

Collis v. United States 851 

Colonial Pipeline Co. v. Alabama 936 

Colorado u Connelly 1050 

Colorado; Texas v. 1017 

Colorado; Wandel u 1032 

Colorado; Yellen v. 1036 

Colorado State Bd. of Law Examiners; Lucero v. . 856 

Colson v. Board of Regents 835 

Columbia Broadcasting System, Inc. ; Hepler v. . 946 

Commercial Federal Savings & Loan; Buckley v. 1068 

Commercial Property Services, Inc.; Public Employees v. 850 

Commissioner; Beeker u 822 

Commissioner; Bonner v. 923 

Commissioner; Cooper v. 1069 

Commissioner; Dale u 905 

Commissioner; Derksen v. 1036 

Commissioner; Dragatsis u 1034 

Commissioner; Foster v. 1055 

Commissioner; Gladney v. 923 



TABLE OF CASES REPORTED XLV 

Page 

Commissioner; Hembree-Bey v. 852 

Commissioner; Hestnes v. 904 

Commissioner; Karmun v. 819 

Commissioner; Kenton Meadows Co. v. 1082 

Commissioner; Knoblauch v. 830 

Commissioner; Masters v. 907 

Commissioner; Moss v. 979 

Commissioner; Piggy Bank Stations, Inc. v. 843 

Commissioner; Rockefeller's Estate v. 1037 

Commissioner; Rutter v. 848 

Commissioner; Stelly v. 851 

Commissioner; Tracy v. 856 

Commissioner; Whitt v. 1005 

Commissioner of Internal Revenue. See Commissioner. 

Commissioner of Labor & Industry of Mont.; Miller-Wohl Co. v. . . . 1045 

Commissioner of N. Y. State Tax Comm'n; Trump v. 915 

Commissioner of Patents and Trademarks; Etter v 828 

Commissioner of Tax. & Finance of N. Y.; American Ins. Assn. v. 803 

Commodity Futures Trading Comm'n v. Schor 1018 

Commonwealth. See name of Commonwealth. 

Communications Workers; AT&T Technologies, Inc. v. 814 

Communications Workers; Scaglione v. 921 

Community Health Services of Crawford Cty. v. Travelers Ins. Cos. 1056 

Community Nutrition Institute; Young v. 1018 

Como v. United States 909 

Compania Dominicana de Aviacion; Arango v 995 

Comptroller of Currency; Securities Industry Assn. v. . . 1054 

Concordia Parish Sheriff's Dept.; Baltezore v. 1065 

Condado Holiday Inn v. Tourism Co. of Puerto Rico 917,1031,1046,1079 

Conklin v. Georgia . . ... 1038 

Connecticut; Cavros v. . . . .... 904 

Connecticut; Dolphin v. . 833 

Connecticut; Dupree v. ... .... . .951 

Connecticut; Gasparro v. . . . . 828 

Connecticut; Reddick v. .... . 1067 

Connecticut v. Sutton .... 1073 

Connelly; Colorado v . . 1050 

Connolly v Burt . . . 1004 

Connolly v. Pension Benefit Guaranty Corp . . 810 

Connor v. Department of Labor . 998,1077 

Consolidated Rail Corp. v Hallamore Motor Transportation, Inc. 918 
Consumers Union of United States, Inc.; Cranberg v. . 850,1097 

Contact Lens Mfrs. Assn. v. Food & Drug Administration . 1062 

ContiCommodity Services, Inc. v. Schor . 1018 



XLVI TABLE OF CASES REPORTED 

Page 

ContiCommodity Services, Inc. ; Schor u 1083 

Continental Group, Inc.; Mason v. 1087 

Continental Ins. Cos. ; Rodman v. 804 

Contreras v. United States 832 

Control Data Corp. v. C. E. Services, Inc 1037 

Conway; Cerbone v. 1100 

Cook; De Nardo v. 1101 

Cook; Pan American World Airways, Inc. v. 1109 

Cook County Police and Corrections Merit Bd.; Aguilera v. 907 

Cook County Police and Corrections Merit Bd.; Maggette v. . . . 945,1077 

Cooke; Robinson v. 840,1015 

Cooke; Sims v. 849 

Cooke; Tate v. 842 

Cooks v. Oklahoma 935 

Cooley; Administrators of Tulane Educational Fund v. 820 

Coombs v. McGarry 835,1015 

Cooper v. Commissioner 1069 

Cooper; Dodson v. 941,1084 

Cooper v. Mitchell Brothers' Santa Ana Theater 948,1077 

Coplin v. United States 1050 

Copy-Data Systems, Inc. v. Toshiba America, Inc 825 

Corbett v. Mintzes 1010 

Corbett v. United States 1063 

Corcoran v. Wyrick 923 

Cordis Corp. v. Medtronic, Inc 851 

Corey Outdoor Adv., Inc. v. Bd. of Zoning Adjust, of Atlanta .... 802 

Corley v. Herman 831 

Corley v. Meese 837 

Cornett v. United States 982 

Coronel-Quintana v. United States 819 

Corporation Comm'n of Kan.; Northwest Central Pipeline Corp. v. 812 

Corpus Christi People's Baptist Church, Inc. v. Texas 801 

Corrections Commissioner. See name of commissioner. 

Correia; John Holman & Sons, Ltd. v. 1082 

Cortez v. Pennsylvania 950 

Cortez v. Unauthorized Practice Comm., State Bar of Tex 980 

Cortez Agency v. Unauthorized Practice Comm. , State Bar of Tex. 980 

Cossett v. Ledford 1065 

Cotton v. Federal Land Bank of Columbia. . . . 1104 

Coughlin v. Patterson 1100 

Coughlin; Payne v. 861,1054 

County. See name of county. 

County Sanitation Dist. No. 2 v. Los Angeles County Employees 995 

Court House Plaza Co. v. Palo Alto 945,1077 



TABLE OF CASES REPORTED XLvn 

Page 

Court of Appeals of Md. ; Marshall v. 802 

Cousineau; Firestone Tire & Rubber Co. -V. 971 

Covington v. Leeke 856 

Cowell v. Alabama 1035 

Cox Communications, Inc. ; Lowe v. 982 

Cox Enterprises, Inc.; Shockley v. 1102 

Craig v. Tuscaloosa News, Inc 841 

Cranberg v. Consumers Union of United States, Inc 850,1097 

Crane; Dallas County v. 1020 

Crane u Kentucky 1019 

Crane; Wade v. 1020 

Crawford v. Edmonson 905 

Crawford v. United States 1084 

Crawford Fitting Co. v. J. T. Gibbons, Inc 890 

Creative Forest Products; Bint v. 803 

Creed & Son, Inc. v. Trident Technical College 1060 

Crespo-Diaz v. United States 952 

Crest Street Community Coun. ; North Carolina Dept. of Transp. v. 1049 

Crichton; Berkic v. 826 

Crooker v. United States 1024 

Crooks v. United States 996 

Cudahy; Schramm v. 852 

Cuddy v. Carmen 1034 

Cuervo v. United States 1009 

Cumberland Area Teamsters Pension Fund v. Hoover 845 

Cummings v. United States 817,1014 

Cunningham v. Housing Authority of Opelousas 1007 

Cunningham v. Las Vegas 831 

Cunningham; Lawrence v. 1083 

Cunningham v. Opelousas Housing Authority 1007 

Cunningham v. Shafer 831,997 

Cuomo; Maresca v. 802 

Currey v. Waffenschmidt 1056 

Carrie v. Barry 1060 

Curtis v. Doubleday & Co 912 

Gushing-Gale u Smith 1012 

Cuyahoga Valley R. Co. v. Transportation Union 3 

Dabney; Montgomery Ward & Co. -w. 904 

Da-Chuan Zheng v. United States .... 1060 

Dacon; Meiri -v 829 

Daetwyler Corp. v. Meyer 980 

Daurymen, Inc. v. United States . . . 822 

Dale v. Commissioner 905 



XLVIII TABLE OF CASES REPORTED 

Page 

Dallas County v. Crane 1020 

Dallas Offset, Inc.; Lopez v. 830 

Daly v. United States 1022 

Damon v. South Carolina 865,1015 

Dampier u Lane 1085 

Daniel u United States Parcel Service 1067 

Daniel P. Foster, P. C. u United States 1061 

Daniels, In re 977 

Daniels v. Papasan 996 

Daniels v. Williams 327 

Dannon Co. ; McGreevy v. 828 

Dano v. Szombathy 950,1077 

Danzig; Grynberg v. 819 

Darden v. Wainwright 899 

Darling v. United States 1024 

Darr v. United States 834 

Darud u United States 983 

Darwin V. Rison 1062 

Darwin v. United States 834,836,838,1104,1110 

Davenport v. United States 840 

Daves u State Bar of Tex ... 1043 

David u American Telephone & Telegraph Co 832 

Davidson v. Cannon 344,898 

Davis, In re 896,1032 

Davis v. Bandemer 991 

Davis v. Bethlehem Steel Corp 1021 

Davis; Bishop v. 950,1077 

Davis; Delbridge v. . 839 

Davis v. First State Bank 1098 

Davis u Fuleomer 1010 

Davis v. Gupton 1023 

Davis u Indiana 1014 

Davis; Longshoremen v. 899,1098 

Davis; Mitchell v. 949 

Davis; Tillis u 837 

Davis u United States 908,998,1036 

Day, In re 813,814,943 

Day v. Amoco Chemicals Corp 1065 

Day v. Black 922 

Day v. South Park Independent School Dist 1101 

Day v. Wettman . . 1035 

Dayton Christian Schools, Inc.; Ohio Civil Rights Comm'n v. . . 978 

Deacon u Illinois 921 

Dean u United States 916,1005 



TABLE OF CASES REPORTED XLIX 



Deane v. Thomson McKinnon Securities, Inc ..................... 903 

Dean Forwarding Co.; Prenzler u ........................... 990 

Dean Steel Erection Co. ; Whalen v. ....................... 802 

DeFazio u Springfield .............................. 1055 

Defiance Button Machine Co.; C & C Metal Products Corp. v. ... 844 

DeGarmo v. Texas .................................... 973 

Deglow, In re ...................................... 1O79 

De lorio; Cody v. ................................ 1O65 

DeKalb County; Pine Hill Civic Club, Inc. v. ................ 892 

DeLaine; Span v. .................................. 835,990 

De la Lastra Petrire v. Spantax, S.A ....................... 846 

Delanie; Burton v. ................................. 859 

Delaware; Bailey v. ................................ 873 

Delaware; Coleman v. ................................. 950,1077 

Delaware; Edgerton u ............................ 804 

Delaware v. Fensterer ............................. 15 

Delaware; Flarner v. .............................. 865 

Delaware; Robinson v. ............................ 921 

Delaware v. Van Arsdall ............................ 897,977 

Delaware; Williams v. .................... ......... 824 

Delaware Valley Git. Coun. for Clean Air; Pennsylvania v. 815,819,1047 
Delbridge v. Davis ................................ 839 

De Le Puente v. United States ...................... 10O5 

Delespine v. McCotter ................................ 9O6 

Delia Porta v. Department of Transportation ............. 981 

Dellinger u United States ........ ................. 10O5 

Del Monte Corp. v. Blau .......................... 865 

Delozier; Gillies v. ................. .......... 11OO 

Delta Air Lines, Inc. v. Florida Dept. of Revenue .......... 892 

Del Vecchio v. Illinois ............................ 883,1015 

Dernjanjuk v. United States ..................... 1034 

De Nardo v. Cook ........................ 11O1 

Dennie v University of Pittsburgh School of Medicine ..... 849 

Dennis v. United States ..................... 832 

Denson^ Department of Health and Human Services. . . 946,1077 
Denton; Scott v. .............. . . . 950 

Department of Agriculture; Park County Resource Council, Inc. v. 8O7 
Department of Army; Evans v. ... . . . .... 979 

Department of Energy; Christmann & Welborn u ..... 9O1 

Department of Energy; MGPC, Inc. v. ..... ..... 823 

Department of Energy; Texas v ...... .... 10O8 

Department of Health and Human Services; Denson v. ..... 946,1077 

Department of Health and Human Services; Marin v. . . . . 1061 

Department of Health and Human Services; Miller v. ..... 852 



L TABLE OF CASES REPORTED 

Page 

Department of Health and Human Services; Okello v. 1036 

Department of Interior; Lunday-Thagard Co. v. 1055 

Department of Interior; Rhodes v. 1103 

Department of Justice; Landes u 821,1014 

Department of Labor; Connor v. 998,1077 

Department of Labor; Newby v. 898 

Department of Labor; Schwender v. 1054 

Department of Labor; Theatrical Stage Employees v. 901 

Department of Navy; Richards u 833 

Department of Revenue of Ore. ; Worre v. 1058 

Department of Social Services of Rusk County v. J. C 971 

Department of State; Jordan v. 813,996 

Department of Transportation; Bodine v. 923,1027 

Department of Transportation; Campbell v. 1084 

Department of Transportation; Delia Porta v. 981 

Department of Transportation; Gray v. 1069 

Department of Transportation v. Paralyzed Veterans of America 918,992 

Department of Transportation; Poquiz v 952 

Department of Treasury; Dutka v. 905 

Department of Treasury v. Galioto 943 

Department of Treasury; Srubar v. 855,1000 

Derksen v. Commissioner 1036 

DeRobertis; Smith v. 838 

DeRobertis; Veal v. 1082 

DeSantis v. United States 1008 

Desert Outdoor Advertising, Inc. v. Naegele Outdoor Adv. Co. . 1003 

Des Moines; Devan v. 1068 

Des Moines v. Moore 1060 

Detroit Manpower Dept.; Henry v. 1036 

Detroit Public School Administrators; Brodis v. 835 

Devan v. Des Moines 1068 

Devex Corp. v. General Motors Corp 890 

Devine; Sparrow u 949,1077 

Dial v. United States 838 

DialAmerica Marketing, Inc. u Brock 919 

Diamond; Burton v. 1035 

Diamond v. Charles 809 

Diaz v. United States 1043 

Dick v. Georgia 865 

Dieball; Mueller v. 864 

Dietz; Simons u 838 

Di Gilio v. United States 822 

Dillon; Miller v. 857 

Dillon v. Potomac Hospital Corp 971 



TABLE OF CASES REPORTED o 

Page 

DiMaggio v. United States 983 

Dimension Financial Corp.; Board of Governors, FRS v. 361,897 

Di Napoli w Northeast Regional Parole Comm'n 1020 

Dion; United States v. 900,978 

Director, Dept. of Corrections; Bullock v. 1023 

Director, Division of Taxation; Silent Hoist & Crane Co, v. 995 

Director, 111. Dept. of Corrections; Brownstein v. 858 

Director, Office of Workers' Compensation; Hinton v. 847 

Director, Office of Workers' Compensation; Idlebird -BL 859,1000 

Director of penal or correctional institution. See name or title 
of director. 

Director, State Dept. of Social Services; Midwife v. 1012 

Directory Service Co. of Colo., Inc. v. Rockford Map Publishers. . . 1061 

Disbrow v. United States 1023 

Dise v. United States 982 

DiSilvestro v. United States 862,990 

District Court. See U. S. District Court. 

District Director of Internal Revenue Service; Moyer v. 1103 

District Judge. See U. S. District Judge. 

District of Columbia; Rustin v. 946 

District of Columbia; Sobin v. 860 

District of Columbia; Tinker-Bey v. 1065 

District of Columbia Teachers Fed. Credit Union; Shaffer-Corona v. 1065 

Division of Medical Quality; Hurvitz v. 1081 

Division of Pari-Mutuel Wagering; Calder Race Course, Inc. v. . . . 802 

Dixon; Garcia v. 1043 

Dixon; Travalino v. 1043 

Dixon u United States 829 

D. L. Auld Co. v. Chroma-Graphics Corp 825 

Dobbs, In re 917 

Dobey v. United States 818 

Dodge County; Bray V. 983 

Dodson v. Cooper 941,1084 

Doe v. N"ew Mexico 1063 

Dole; Belmont v 1055 

Dole; Hoover v. 902 

Dole v. Railway Labor Executives' Assn 1099 

Dolphin -& Connecticut 833 

Dolphin Titan International, Inc.; B & G Crane Service, Inc. v. . . 904 

Doran u Travelers Indemnity Co 1007 

Dotson v. United States 862 

Doubleday& Co.; Curtis v. 912 

Douglas; Groshon -z;. 1035 

Douglas -v. Holiday Inn of Wilkesboro . . 847 



LII TABLE OF CASES REPORTED 

Page 

Douglas v. Travelers Inns of North Wilkesboro, Inc 847 

Dow v. United Van Lines 825,1014 

Dow Chemical Co.; Sibaja v. 948 

Dow Chemical Co. v. United States 810 

Dowling; Johnston v. 904 

Dowty v. Pioneer Rural Electric Cooperative, Inc 1021 

Dracos v. Hellenic Lines Ltd 945 

Dragatsis v. Commissioner 1034 

Drake; Kemp v. 993 

Drape u United States 821 

Drivers & Helpers u Mid-Continent Bottlers, Inc 947 

Drury; Shorter v. 827 

Ducher v. United States 840 

Duckworth; Holleman v. 1069 

Duckworth; Kalec v. 860 

Duckworth; Kimble v. 1023 

Duckworth; Phelps v. 1011 

Duckworth; Zellers v. 952 

Duff v. Virginia 905 

Duff-Smith v. Texas 865 

DuFresne v. Baer 817 

Dunbar v. South Carolina 1063 

Dunlap v. Massey 1063 

Dunlop Tire & Rubber Co.; Razzano v. 948 

Dunn v. Mearls 821 

Du Pont de Nemours & Co.; Barker v. 976 

Dupree v. Connecticut 951 

Duquesne Light Co. v. Mine Workers 863 

Durwood Medical Clinic, Inc.; Hume v. 848 

Dutka v. Department of Treasury 905 

Duty Free Shoppers, Ltd.; Sakamoto v. 993 

Eagle v. United States 853 

Eagle Books, Inc. v. Jones . . . 920 

Earl v. Israel . 951 

Earl's Pump & Supply Co. u Colberg, Inc 820 

Earnest; New Mexico v. 918 

East v. Texas 1000 

Eastern Airlines Inc. v. Florida Dept. of Revenue 892 

Eastern Air Lines, Inc. v. Mahfoud 213 

Eastern Air Lines, Inc. v. Winbourne 1036 

East River S.S. Corp. v. Transamerica Delaval Inc. ... . 814,1046 

Eckels v. Greater Houston Chapter of ACLU 980 

Eddie S.S. Co.; Cardinal Resources, Inc. v. . . 823 

Edge u United States 862 



TABLE OF CASES REPORTED nil 

Page 

Edgerton t). Delaware 804 

Edmonds v. Virginia 975 

Edmonson; Crawford v. 905 

Edwards v. Hannon 823 

Edwards v. Harris 1004 

Edwards; Kane v. 835 

Edwards v. Wilkes-Barre Publishing Co. Pension Trust 843 

Eichenlaub v. Yurky 1049 

E. I. du Pont de Nemours & Co.; Barker v. 976 

Eisenberg; Pelino, Wasserstrom, Chucas & Monte verde, P. C. v. . . 946 

Eisenberg; Wasserstrom v. 946 

Eisenberg; Weinstein v. 946 

Eissa v. United States 1013 

El Cid, Ltd. v. New Jersey Zinc Co 1021 

Electrical Workers; Gormong v. 834,990 

Elevator Constructors v. National Elevator Industry, Inc 819 

ElFadl; Maryland u 811 

Ellington u United States 1034 

Elliott; El Shahawy v. 980,1077 

Elliott u Ohio 1058 

Elliott; University of Tenn. v. 1004 

Ellis; McKinney u 1022 

Ellison; Carl E. Widell & Sons -V. 1083 

Elmore v. United States 996 

El Paso Bd. of Realtors; Action Real Estate v. 1102 

El Paso Bd. of Realtors; Park v. 1102 

Elrod; Miller v 951 

El Shahawy v. Elliott 980,1077 

El Shahawy v. Sarasota County Public Hospital Bd 829,1014 

Emerson; Bogarat v. 1058 

Engelhart v. United States . 1101 

England v. Ryan 952 

Engle; Robinson v. 842 

English; C. H. B. Foods, Inc. v. 807 

Enriquez v. Florida 906 

Environmental Protection Agency; Modine Mfg. Co. v. 1005 

Environmental Protection Agency; Quivira Mining Co. v. 1055 

EEOC; Atlanta Gas Light Co. u 968 

EEOC v. Federal Labor Relations Authority 811,1031 

EEOC; First Citizens Bank of Billings v 902 

EEOC v. Missouri State Highway Patrol 828 

EEOC; Prudential Federal Savings & Loan Assn. v. 946 

EEOC; Sheet Metal Workers v. 815,1045 

Equitable Life Assurance Society; Chnstensen v. 1102 



Liv TABLE OF CASES REPORTED 

Page 

Ergazos, In re 807 

Erlbaum v. Clem 849 

Erman; Brown u 824 

Erman; Sheppard v. 835 

Ernest u U. S. Attorney for Southern Dist. of Ala 1016 

Eschler v. Boeing Co 1082 

Esdaille u United States 923 

Estate. See name of estate. 

Estrada u United States 830 

Etheridge v. Mitchell 1019,1111 

Ethyl Corp. v. United States 1070 

Eti-Quette Assaf Ltd.; Hoffinan v. 1001 

Etter v. Commissioner of Patents and Trademarks 828 

Eubanks v. O'Brien 904 

Euclid u Mabel 826 

Evan; Burton u 1035 

Evans, In re 1002 

Evans u Department of Army 979 

Evans u Franklin State Bank 949 

Evans v. Fulcomer 1066 

Evatt v. United States 1012 

Ewert v. Exxon Co 819 

Ewing; Regents of Univ. of Mich. v. 214,810,1017 

EWP Corp. v. Reliance Universal, Inc 843 

Exotic Coins, Inc. v. Beacom 892 

Exxon Co., USA; Ewert u . 819 

Exxon Corp. v. United States 1105 

Fahey v. Beckley 1001,1097 

Fairley u Mississippi 855 

Fail-man; Parker v. 1066 

Fairmont; Sharon Steel Corp. u 993,1098 

Faison v. McLean Trucking Co 856 

Faith Center, Inc. v. Federal Communications Comm'n 1006,1111 

Farkas u New York State Dept. of Health 1033 

Farley v. Roberts 1005 

Farm Stores, Inc. v. Texaco Inc 1039 

Farrier; Lamp v. 1009 

Farris v. U. S. Postal Service .... 907 

Faulisi v. United States 908 

Fauver; Zeltner u 838 

Fay v. O'Brien 854 

Fay v. United States 853 

Fazzino v. United States 851 

FCC; Butler v. 832 



TABLE OF CASES REPORTED LV 

Page 

FCC; California v. 809,1002 

FCC; Faith Center, Inc. v. 1006,1111 

FCC; Florida Public Service Comm'n v. 809,1002 

FCC; Genesis Broadcasting Ltd. v. 946 

FCC; Louisiana Public Service Conun'n v. 809,1002 

FCC; Martin-Trigona v. 1034 

FCC; Public Utilities Comm'n of Ohio v. 809,1002 

FCC; Royce International Broadcasting Co. u 995 

Federal Deposit Ins. Corp.; Morrison v. 1019 

Federal Deposit Ins, Corp. u Philadelphia Gear Corp 918 

Federal Deposit Ins. Corp.; Wood v. 944 

FEC; Hopftnann v. 1038 

FEC v. Massachusetts Citizens for Life, Inc 1049 

FERC; Natural Gas Pipeline Co. v. 1066 

FERC; Public Service Co. of Colo. v. 1081 

FERC; Tulalip Tribes of Wash. v. 900 

Federal Home Loan Bank Bd.; State Savings & Loan Assn. v. . . . 1057 

FLRA; Equal Employment Opportunity Comm'n v. 811,1031 

FLRA; New York Council Assn. of Civilian Technicians v. 846 

Federal Land Bank of Columbia; Cotton v. 1104 

Federal Trade Cornm'n v. Indiana Federation of Dentists 900 

Fein u Perrnanente Medical Group 892 

Felder v. Alabama 976 

Felder v. South Carolina 1066 

Fells v. Snyder 922 

F. E. L. Publications, Ltd. u Catholic Bishop of Chicago 824 

Felt v. First Bank of S. D 824 

Fensterer; Delaware u 15 

Fenton; Miller v. 104 

Ferguson v. United States 857,1032 

Ferrari; Martin-Trigona v. 860 

Ferro Corp.; Brown v. 947 

Fetherston; Blocker v . . 831 

Fibre Glass-Evercoat Co.; Argus Chemical Corp. v. 903 

F. I. Corp. v. Bank of America, N. T. & S. A 850 

Fidelity & Casualty Co. u Philadelphia Resins Corp 1082 

Figneroa u United States . 840 

Fine u Bellefonte Underwriters Ins. Co. . . 826 

Finkbeiner; Kerr v. . . 929 

Firefighters v. Cleveland . 816,1047 

Firestone; Geison v 1066 

Firestone Tire & Rubber Co. u Cousineau 971 

Firestone Tire & Rubber Co.; Morgan v. 843 

Firestone Tire & Rubber Co. v. United States 1070 



LVI TABLE OF CASES REPORTED 

Page 

First Ala, Bank; Parsons Steel, Inc. v. 518 

First Bank of S. D.; Felt v. 824 

First Citizens Bank of Billings v. EEOC 902 

First Federal of Mich.; Miller v. 849 

First Federal Savings & Loan Assn. of Brunswick; McGee v. 905 

First National Bank of Mt. Vernon; Waffenschmidt v. 1056 

First National Bank & Trust Co.; Thompson v. 895,1027 

First Presbyterian Church of Anna; York v. 865 

First State Bank; Davis u 1098 

Fisher v. Berkeley 898 

Fisher v. United States 819,838 

Fitzgerald; Sorensen v. 918,1014 

Flamer u Delaware 865 

Fleming v. Alabama 857 

Fleming v. United States 997 

Flores v. Southern Pacific Transportation Co 828 

Florida; A. E. R. v. 1011 

Florida u Arango 806,1015 

Florida; Brown v. 1034,1038 

Florida; Burr v. 879 

Florida; Enriquez v. 906 

Florida; Francis v. 1094 

Florida; Griffin v. 1094 

Florida; Johnson v. 865 

Florida; Oats v. 865 

Florida; O'Neil v. 861 

Florida; Patten v. 876 

Florida; Pressley v 982 

Florida; Pugh v. 847 

Florida; Reynolds v. 980 

Florida v. Ross 898,945 

Florida; Stano v. 1093 

Florida; Wigley v. 949 

Florida; Wright v. 1094 

Florida Dept. of Revenue; Delta Air Lines, Inc. v. 892 

Florida Dept. of Revenue; Eastern Airlines Inc. v. . 892 

Florida Dept. of Revenue; Northeastern International Airways v. 891 
Florida Dept. of Revenue; Wardair Canada Inc. v. . 943,1002,1079 

Florida Public Service Comm'n v. FCC . 809,1002 

Florida State Univ. Health Center v. Joshi 948 

Flota Mercante Grancolombiana, S.A.; Pennington v. . 1057 

Flower Hill; Collard v. 827 

Flowers v. General Motors Corp 1085 

Fluidyne Instrumentation v. Bank of America, N. T. & S. A. . . . 850 



TABLE OF CASES REPORTED LVII 

Page 

Flying Tiger Line, Inc.; Patel -v. 947 

Flying Tiger Line, Inc.; Zlomke v. 833,1014 

Flynn v. Shultz 830 

Folak v. United States 827 

Folger Coffee Co. v. Indian Coffee Corp 863 

Foltz; Bowen v. 1035 

Fondel u Ford Motor Co 993 

Food & Commercial Workers v. Baerwaldt 1059 

Food & Commercial Workers; Jones Dairy Farm v. 845 

Food & Drug Administration; Contact Lens Mfrs. Assn. v. 1062 

Foote Memorial Hospital, Inc. v. Grubb 946 

Forbes; Varnes v. 1058 

Ford, In re 814 

Ford; Burton v. 858 

Ford v. Ford 909 

Ford v. Heckler 859 

Ford v. Wainwright 1019 

Ford Motor Co.; Fondel v. 993 

Ford Motor Co.; O'Kane u 888 

Ford Motor Credit Co.; Suburban Ford, Inc. v. 995 

Foreman v. United States 1023 

Forsyth v. Larsen 982 

Fortune; Schiavone v. 814 

Fosburg; Mir v. 981 

Foster v. Commissioner 1055 

Foster v. New York 857 

Foster v. Smith 861,990 

Foster, P. C. v. United States 1061 

$4,255,625.39 v. United States 1056 

Fowler v. Southeast Toyota Distributors, Inc 951,1038 

Francis; Brown v. . . 865 

Francis; Cape v. 911,1027 

Francis v Florida . . . 1094 

Francis; Smith v. . . . 925,1026 

Franklin State Bank; Evans v. 949 

Franklin State Bank; McCrary v. 949 

Fransaw; McCotter v .... 864 

Franzen; Gorham v. . ... ... ... 922 

Fraser; Bethel School Dist. No. 403 v. . 814,1046 

Frazier v Placer Savings & Loan Assn 1035 

Frazier v. United States ... 922 

Frederick v. United States . . 1009 

Freedom Realty; Freedom Savings & Loan Assn. v. . . 845 

Freedom Savings & Loan Assn. v. Freedom Realty 845 



LVIII TABLE OF CASES REPORTED 

Page 

Freedom Savings & Loan Assn. u Way 845 

Freeland v. United States 1009,1097 

Freeman; Owens v. 838,990 

French v. Mead Paper Corp 820 

Friday; Bazemore v. 978,1080,1099 

Friday; United States v. 978,1099 

Friel v. Maine 1032 

Fritz v. Marsh 832 

Froeman v. Maryland 860 

Froneberger v. Armstrong 1023 

Frontier Properties, Inc.; Wade v. 837 

Fryar, In re 993 

Frye v. Steelworkers 1007 

Fryzel v. Cash Currency Exchange, Inc 904 

Fudger v. Montgomery County 947 

Fuentes v. New York 906 

Fulcomer; Coder v. 832 

Fulcomer; Cole v. 921 

Fulcomer; Davis v. 1010 

Fulcomer; Evans v. 1066 

Fulcomer; Sawyer v. 1063 

Fulcomer; Weibner v. 852 

Fulcomer; Zimmerman v. . 997 

Fuller u North Carolina 1065 

Fuller v. United States 1008 

Fulsorn v. Morris 952 

Furka; Great Lakes Dredge & Dock Co. v 846 

Futura Development Corp. v. Centex Corp . . 850 

Gabriel Energy Corp. v. Hodel 900 

Gaertner v. United States 1009 

GAF Corp. v. Cheng 809 

Gaines u Merchants National Bank & Trust Co. of Indianapolis . . . 1030 

Gainesville v. Island Creek Coal Sales Co 948 

Galioto; Department of Treasury v. . 943 

Gallentine v. United States 1105 

Galuszka v. Schwab ... 803 

Gamez v. Texas ... 833 

Gannon v. Arizona 1010 

Gans v. Mundy ... 1010 

Gant v. United States 851 

Gantt, In re 896,1016 

Garcia v. Dixon . 1043 

Garcia v. Southern Pacific Transportation Co . . 848 

Garcia v. United States 832,907 



TABLE OF CASES REPORTED LEX 

Page 

Garrnany v. United States 1062 

Garrett v. Arkansas 823 

Garwood v. United States 1005 

Gasparro v. Connecticut 828 

Gassett v. United States 855 

Gati v. United States 1024 

Gay v. Coats & Clark, Inc 903 

Gay v. Henry 983 

Gay v. Petsock 951 

Geiger v. United States 1086 

Geisler v. Kansas 904 

Geison -v. Firestone 1066 

Gel Spice Co. v. United States 1060 

General Dynamics, Inc.; Jackson v. 1063 

General Electric Credit Corp.; Grant v. 1031 

General Felt Industries, Inc.; Aleern v. 813 

General Motors Corp. ; Baker v. 899 

General Motors Corp. ; Devex Corp. v. 890 

General Motors Corp. ; Flowers u 1085 

General Motors Corp. ; Technograph, Inc. v. 819 

General Services Administration; Thomas v. 843 

Genesis Broadcasting Ltd. v. Federal Communications Comm'n . 946 

Gentsch v. Roberson 1065 

George; Liberty National Bank & Trust Co. of Louisville v. 821 

George; United Ky. Bank, Inc. v. 821 

George A. Creed & Son, Inc. v. Trident Technical College ... . 1060 

Georgia; Alderman v 911,1000 

Georgia; Baxter v. 935 

Georgia; Beck v. . 872 

Georgia; Conklin v. 1038 

Georgia; Dick v. . 865 

Georgia; Hance v. 1038 

Georgia; Walker -v 865,1015 

Georgia Dept. of Medical Assistance v. Bowen 1059 

Georgia Theatre Co. ; Patterson v. 1024 

Gerace v. Grocery Mfrs. of America, Inc 801 

Gerace; Grocery Mfrs. of America, Inc. v. 820 

Geringer v. California 1065 

Gholson; Reid v. . 824,1014 

Gholston v. United States 1012 

Gibbons, Inc.; Crawford Fitting Co. v. 890 

Gibson v. Board of Attorneys Professional Responsibility of Wis. 976 

Gibson; Prevatte v. 918 

Gibson v. United States 1100 



LX TABLE OF CASES REPORTED 

Page 

Gilbert v. Burlington Industries, Inc 978 

Gilbert v. California State Personnel Bd 841 

Giles v. Indiana 858 

Gillespie v. Wisconsin 1083 

Gillies v. Delozier .... 1100 

Gillis v. Orr 908 

Gingles; Thornburg v. 808 

Ginnodo v. Office of Personnel Management 848 

Ginsberg; Authier v. 888 

Girjalva; Wright v. 861 

Givens v. United States 953 

Givens Signs, Inc. u Nags Head 826 

Gladney v. Commissioner 923 

Glaesman; Tudor v. 995 

Glass v. United States 856 

Glassboro; Philadelphia v. 1008 

Gleason v. United States 1058 

Glenwood T.V., Inc. v. Ratner .... 916 

Glick u Lockhart 834,997,1084 

Glover; Alabama Dept. of Corrections v. 806 

G. N. A. C. Corp.; Simone v. 820 

Gobley v. Minnesota 922 

Goeres; Rosberg v. 861 

Goldberg v. United Parcel Service of America, Inc 920 

Goldblatt v. Vogel 952 

Golden; Grace v. 901 

Golden Nugget Hotel & Casino; Simone v 820 

Golden State Transit Corp. v. Los Angeles 811 

Golden West Broadcasters, Inc. ; Sharp-Eye Enterprises v. . . . 817 

Golden West Broadcasters, Inc.; Smith v. . . .... 817 

Goldfarb v. Supreme Court of Va 1086 

Goldhammer; Pennsylvania v. 28 

Goldman v. Massachusetts 906 

Goldman; Ridley v. 1011 

Goldstein; Manhattan Industries, Inc. v 1005 

Golin v. Brookhaven National Laboratory 1059 

Gonzales v. United States 1068 

Gonzalez v. United States 831 

Gonzalez-Rios v. United States .... 822 

Goodlataw v. Alaska 813,996 

Goodpaster v. United States 983 

Goodwin u United States 1084 

Gordon v. Idaho ... 803, 1097 

Gordon v. New York 1009 



TABLE OF CASES REPORTED LXI 

Page 

Gorham v. Franzen 922 

Gormong v. Electrical Workers 834,990 

Gottschall u Jones & Laughlin Steel Corp 845 

Goudlock v. Morris 979 

Gould Inc.; Wisconsin Dept. of Industry, Labor & Human Rel. v. 942 

Govern v. United States 851 

Government Employees v. Reagan 1001 

Government Employees; Warren v 1006 

Governor of Haw. v. Robinson 1018 

Governor of Mich.; Blue Cross & Blue Shield of Mich, u 805 

Governor of Miss.; Papasan -v. 1004 

Governor of N. Y. ; Maresca v 802 

Governor of Pa. v. Am. College of Obstetricians & Gynecologists 809 

Grace v. Burger 1026 

Grace v. Golden 901 

Grace v. Wainwright 901 

Graczyk v. Steelworkers 970 

Grady v. Missouri 951 

Graewe u United States 1068,1069 

Graham; Adams v. 835 

Graham v. United States . . 901 

Grand Canyon Trail Guides u Hodel 846 

Grant u General Electric Credit Corp 1031 

Grant; Stetz v. 1033 

Grant u United States 998,1023 

Grant & Co.; Kahn v 1058 

Grant & Co.; Tiffany Industries, Inc. v 1058 

Grason Electric Co. v. Sacramento Municipal Utility Dist 1103 

Graves v. United States .. 1064,1100 

Gray v. Department of Transportation ... . 1069 

Grayson v. Alabama . . 865 

Great Atlantic & Pacific Tea Co. ; Young v. 947 

Greater Baton Rouge Port Cornm'n v. Jacintoport Corp. 1057 

Greater Houston Chapter of ACLU; Eckels v. 980 

Greater Houston Transportation Co.; Arrow Northwest, Inc. v. , . 903 

Great Lakes Dredge & Dock Co. -v. Furka 846 

Greber v. United States .... 988 

Green v. Mansour . . 64,977,1100 

Green v. Maryland . . . . . 1066 

Green; McMahon v. . . . 819 

Green v Mississippi . . . 979 

Green v, Schwarzer 921,1027 

Green v. South Carolina . . . . . . 921 

Green v United States . . 905,925 



LXII TABLE OF CASES REPORTED 

Page 

Greenfield; Wainwright u 284,810,897 

Greenspun u United States 901,1032 

Greer i;. Black 837 

Greer; Jones v. 1011 

Greer; Lillard v. 1084 

Greer; Searcy v. 996 

Greer v. United States 841 

Gregory v. Auger 1035 

Gregory; Strode u 803,948 

Greif u Bedford 907 

Greyhound Lines, Inc. v. Wilhite 910,1026 

Griffin, In re 1100 

Griffin v. Florida 1094 

Griffin u Rhode Island 845 

Griffin u Scully 905 

Griffith u United States 837,1085 

Grimmer v. Harden 1007 

Grine; Coder v. 907 

Grisso v. Lockhart 841 

Grocery Mfrs. of America, Inc. v. Gerace 820 

Grocery Mfrs. of America, Inc.; Gerace u 801 

Gronowicz v. United States 1055 

Groshon v. Douglas 1035 

Grothe, In re 944 

Group I Defendants; Pleasant View Elementary School PTA v. . . . . 1021 

Grove v. Mead School Dist. No. 354 826 

Groza v. Veterans Administration 873 

Grubb; W. A. Foote Memorial Hospital, Inc. v. 946 

Grumman Ohio Corp. v. New York City 1081 

Grynberg v. Danzig .... 819 

Guam; Snear v. 828 

Guerra; California Federal Savings & Loan Assn. u 1049 

Guilford County Bd. of Ed.; Hunt u . . 947 

Gulf Coast Cable Television Co. v. Affiliated Capital Corp 1053 

Gulf Oil Co.; Palazzo v. 1058 

Gulf South Machine, Inc.; Kearney & Trecker Corp. v. 902 

Gupton; Davis v. . 1023 

Guthrie v. Holland 841 

Guzman v. United States 1054 

Guzmon v. Texas ... 1015 

Haas v. Weiner . 981 

Hackett v. Housing Authority of San Antonio . . 850 

Hackley v. United States . 839 

Haddix v. Ohio Liquor Control Cornm'n 997,1077 



TABLE OP CASES REPORTED LXIII 

Page 

Hafher v. Alabama 1033 

Hagerty v. Keller 968 

Hairston v. United States 854 

Haislip v. Kansas 1022 

Hajimaholis; Sparrow v. 1006,1111 

Hakim v. Wolverine Packing Co 998 

Haley u United States 854 

Hall u Simcox 1006 

Hallamore Motor Transportation; Consolidated Rail Corp. v. 918 

Hallstrom v. Stivers 902 

Halperin; Barney v. 828 

Hamilton v. California 1016 

Hamm v. Parker 1103 

Hammond v. Rapides Parish School Bd 829 

Hampton v. California 825 

Han v. Pilato 1056 

Hance v. Georgia 1038 

Hancharik v. Pennsylvania 819 

Handley v. United States 916,951 

Hannon; Edwards v. 823 

Hannon; SoweDs v. 823 

Hanrahan v. Welborn . 1104 

Hansen v. United States 834 

Hardcastle; Abdul-Rahim u 1010 

Harden; Grimmer v. . . . . 1007 

Hardin v. United States 905 

Hardwick; Bowers v. 943 

Harley v. United States . 858 

Harney u United States 847 

Harrell v. Alabama 935 

Harrell v. United States 1100 

Harrelson v. United States 1034 

Harris; Beckham v. . . 903 

Harris; Edwards v. . 1004 

Harris v. Kentucky . ... 842 

Harris; Pernsley v. 965 

Harrison v. McDade 1066 

Harrleson v. United States . . 908 

Harrod v. Lincoln . . .... . 835 

Hart v. Risley 1013 

Hart v. United States 839,1101 

Hartford u Arizona . 863 

Hartford Federal Savings & Loan Assn.; Tucker u 896,920 

Hartford National Bank & Trust Co.; Tucker v. 845 



LXIV TABLE OF CASES REPORTED 

Page 

Hart Schaf&ier & Marx v. Natural Footwear Ltd 920 

Harvey v. United States 831 

Harvis Construction v. U. S. ex rel. Martin Steel Constructors .... 817 

Hassain v. Newblatt 836 

Hatch v. Oklahoma 1073 

Hatch v. Reliance Ins. Co 1021,1048 

Hatcher v. United States 952 

Hauptman; Hollidayv. 950,1077 

Hauptmann v. Wilentz 1103 

Hawaii; Hou Hawaiians v. 1055 

Hawaii; Kahikina v. 950 

Hawes v. United States 909 

Hawkins v. United States 839,1103 

Hawley v. United States 848 

Hayes v. Cannon 903,1027 

Hayes v. Hayes 853 

Hayes u Illinois 1084 

Hayes v. Lockhart 922 

Hayes v. United States 842 

Haynes v. Verdeyen 1083 

Hazelwood v. United States 1033 

Hearron v. Kansas 839 

Heath v. Alabama 82 

Hebert v. United States 818 

Heckler v. Abington Memorial Hospital 863 

Heckler v. American Hospital Assn 810 

Heckler v. Aurora Community Hospital 863 

Heckler; Ford v. 859 

Heckler v. Humana of Aurora, Inc . 863 

Heckler; Jensen v. 945 

Heckler; Kolman v. 997 

Heckler v. Michigan Academy of Family Physicians 815 

Heckler v. New York City 815 

Heckler v. Owens . 899 

Heckler v. Public Agencies Opposed to Social Security Entrapment 1004 

Heckler v. St. James Hospital 902 

Heckler; Suarez v. 844,1097 

Heckler; Van Horn v. 854,1015 

Heckler; Weisbraut v. 852 

Hedges v. Allinder 892 

Hedwig Village; Ramie v. . . 1062 

Hefner, In re 992,1079 

Heggy v. Welty 947 

Heintz; Baltimore Gas & Electric Co. v. 847 



TABLE OF CASES REPORTED 

Page 

Heiser v. Heiser 824 

Helena Marine Services; New York Marine Managers, Inc. v. 850 

Helena Rubinstein, Inc. ; Marcon, Ltd. v. 825 

Helen Mining Co. ; Mine Workers v. 1006 

Helfricht v. New Jersey 807,1008 

Hellenic Lines Ltd. ; Dracos v. 945 

Heller v. Boyd 982 

Helminski v. Ayerst Laboratories 981 

Helms; Men's Wearhouse, Inc. v. 804 

Helms; Sisson v. 846 

Hembree-Bey v. Commissioner 852 

Hemme; United States v. 814 

Hemphill v. United States 982 

Henderson; Barnes v. 841 

Henderson v. Blackburn 1023 

Henderson; Lee v. 833 

Henderson; Rasullah v. 841 

Henderson v. United States 900,992 

Hennessy v. Arizona 1067 

Henry v. Detroit Manpower Dept. 1036 

Henry; Gay v. 983 

Henry; Miller v 824 

Henry v. United States 855 

Hepler v. Columbia Broadcasting System, Inc 946 

Hercules Inc.; Philadelphia Electric Co. v. 980 

Heredia-Fernandez v. United States 836 

Herier-Darcheriel v. United States 822 

Herion; Paulussen v 899,1017,1031,1047 

Herman; Corley v. 831 

Hernandez v. Bureau of Prisons 1034 

Hernandez u McCotter 832 

Hernandez v. United States 905 

Hernandez-Cartaya v. United States 816 

Hero Id; Burlington Northern Inc. V. 888 

Herrera-Ceballos -v. Immigration and Naturalization Service 853 

Herrera-Vega v United States 858 

Hershey v. United States. 1062 

Hess; Bykofsky v. ... 995 

Hess Oil Virgin Islands Corp. ; Vanterpool v. ... 1059 

Hestnes v. Commissioner ... 904 

Hewitt v. Truth or Consequences . . . ... . 844 

H. F. Allen Orchards v. United States. . 818 

Hicks v. McCotter . . ... .... 952 

Hicks; Sloan v. . . ... 1006,1111 



LXVI TABLE OF CASES REPORTED 

Page 

Hiegel v. Hill 1058 

Hijar v. Burrus 816,1016 

Hilbmann u United States 1062 

Hill; Hiegel v. 1058 

Hill u Lockhart 52 

Hill v. United States 923 

Hillery; Vasquez v. 254 

Hinke v. Workers' Compensation Appeals Bd 1013 

Hinton v. Director, Office of Workers' Compensation Programs . . 847 

H. K. Porter Co.; Oman v. 970 

Hobbs v. Blackburn 838 

Hodel; Canyoneers, Inc. v. 846 

Hodel; Gabriel Energy Corp. v. 900 

Hodel; Grand Canyon Trail Guides v. 846 

Hodel v. Irving 1049 

Hodel; Montana v. 919 

Hodel; Stearns Co. v. '. 900 

Hodges v. Ann Arbor 859 

Hoerner; Woodside v. 949 

Hoffer v. Illinois 847 

Hof&nan v. Eti-Quette Assaf Ltd 1001 

Hogg Brothers Partnership; Miller v. 1007 

Holiday Inn of Wilkesboro; Douglas v. 847 

Hollahan; Rodriguez v. 1035 

Holland; Carr v. 1083 

Holland; Guthrie u 841 

Holland; Spaulding v 998 

Holland; Thornton v. 1083 

Holleman v. Duckworth 1069 

Holliday v. Hauptman 950,1077 

Holloway v. Lockhart . 836 

Holloway v. Walker 1037 

Holman u United States 1062 

Holman & Sons, Ltd. v. Correia . ... 1082 

Holman & Sons, Ltd. v. Superior Court of Cal., San Diego Cty. 1082 

Holmes; Kewanee Oil Co. v. 953 

Holmes v. United States 1061 

Holohan; Ronwin v. ... . 864 

Holsey u Maryland . ... 1004,1006,1077 

Holt; Busby v. 1068 

Holway v. Burger 949 

Hooks v. Phelps 1068 

Hooper v. Arizona 1073 

Hooper v. Washington 919 



TABLE OF CASES REPORTED LXVII 

Page 

Hoosman v. Arizona 841 

Hoover; Cumberland Area Teamsters Pension Fund v. 845 

Hoover v. Dole 902 

Hopfmann u Federal Election Cornm'n 1038 

Hopkinson v. United States 1022 

Hopkinson v. Wyoming 865,1026 

Horan v. United States 1043,1112 

Home v. United States 836 

Horowitz v. United States 822 

Hotel & Restaurant Employees V. Seritis 1060 

Houdenosaunee; Oneida Indian Nation v. 823 

Hou Hawaiians u Hawaii 1055 

Housing Authority of Opelousas; Cunningham v. 1007 

Housing Authority of San Antonio; Hackett v. 850 

Houston Northwest Medical Center, Inc.; Hughes v. 1020 

Howard, In re 991 

Howard v. Howard 857 

Howard v. Radio Corp. of America 907 

Howard Univ. ; Mabin v. 922 

Howell u Maryland 996,1077 

H. Trurnan Chafin Legal Corp.; Blair v. 840 

H. Trurnan Chafin Legal Corp.; Blairco, Inc. v. 840 

Hubbard v. White 834 

Hudson v. Moran 981 

Hudson; Teachers v. 810 

Hudspeth v. North Miss. Savings & Loan Assn 1054 

Huebner; Satterneld v. 818 

Huebner v. United States 817 

Hughes; Ascani v. 1001 

Hughes v. Houston Northwest Medical Center, Inc 1020 

Hughes v. Rhode Island 1009 

Hughes v. United States 860 

Hughes Aircraft Co. ; Ahrned v. 1067 

Hughes Properties, Inc.; United States v. 1004 

Hughes Tool Co.; Smith International, Inc. v. 827 

Hughs v United States 1084 

Hulsey v. United States 1022 

Humana Inc. u Bowen ... 1055 

Humana of Aurora, Inc.; Heckler v. 863 

Hume v. Durwood Medical Clinic, Inc 848 

Humphrey v. U. S. District Court 853 

Humphries v. Chesapeake City Police Dept 831 

Humphries; Pittsburgh & Lake Erie R. Co. v. 863 

Hunt v. Guilford County Bd. of Ed 947 



Lxvm TABLE OF CASES REPORTED 

Page 

Hunt v. Ohio 840 

Hunt; Shaw v. 1012 

Hunt v. United States 1061 

Hunter v. Illinois 997 

Hunter v. United States 842,1067 

Hunter; United Van Lines, Inc. v. 863,1014 

Kurd, In re 916 

Hurvitz v. Division of Medical Quality 1081 

Hurwitz v. Texas 1102 

Huskey v. Tennessee 936 

Hutchings v. United States 829 

Hatchings von Ludwitz v. United States Parole Comm'n 984 

Hutto; Carr v. 1019 

Hutto v. Jones 916 

Hyde v. Van Wormer 827,992 

Hylin v. United States 807 

Hyter, In re 807 

lannaccio v. Pennsylvania 830 

Icicle Seafoods, Inc. v. Worthington 900,978,1080 

Idaho; Gordon v. 803,1097 

Idaho Dept. of Health and Welfare; Bowden v. 805,1000 

Idlebird u Director, Office of Workers' Compensation 859,1000 

Igbatayo v. United States 862 

Illinois; Allen u 979,1080,1100 

Illinois; Antonelli v. 1103 

Illinois; Bell v. 852 

Illinois; Bennett v 858 

Illinois; Bobis v. 827 

Illinois; Bondi v. 836 

Illinois; Brisbon u 908 

Illinois; Carroll v. 1066 

Illinois; Collins v. 935,1027 

Illinois; Deacon v. 921 

Illinois; Del Vecchio v. 883,1015 

Illinois; Hayes v. 1084 

Illinois; Hoffer v. 847 

Illinois; Hunter v. . 997 

Illinois; Kosyla v. 832,907 

Illinois; Lee v. 812 

Illinois; Lewis v. . . 865 

Illinois; Lovinger v. 919 

Illinois; Lyles v. 859 

Illinois; Madej v. 935, 1038 

Illinois; Morris v. 856 



TABLE OF CASES REPORTED LXIX 

Page 

Illinois; Norton v. 803 

Illinois; Perez u 1110 

Illinois; Smith v. 949 

Illinois; Stocki v. 952 

Illinois; Thrasher v. 850 

Illinois; Williams v. 836 

Illinois; Young v. 833 

Illinois Commerce Comm'n v. Interstate Commerce Comm'n 820 

Illinois Community Coll. Dist. 515, Prairie State Coll.; Piarowski v. 1007 

Illinois Dept. of Revenue; Pfluger v. 848 

Illinois Pro-Life Coalition, Inc., Ill v. Keith 980 

Immigration and Naturalization Service; Herrera-Ceballos v. 853 

Immigration and Naturalization Service; Lachica v. 1060 

Immigration and Naturalization Service; Mainsah v. 977 

Immigration and Naturalization Service; Pasco v. 1033 

Immigration and Naturalization Service; Quan Young v. 996 

INA Life Ins. Co.; Norwood v. 1059 

Independent Bankers Assn. of N. Y. , Inc. v. Marine Midland Bank 812 

Independent News, Inc. v. Bank of Ore 826 

Indiana; Bixler v. 834 

Indiana; Davis v. 1014 

Indiana; Giles u 858 

Indiana; Kentucky v. 1 

Indiana; Moore v. 1026 

Indiana; Willardo v. 1098 

Indiana Federation of Dentists; Federal Trade Comm'n v. 900 

Indian Coffee Corp. ; Folger Coffee Co. v. 863 

Inge v. Sielaff 833 

In re. See name of party. 

Insurance Co. of North America v. Puerto Rico Marine Management 1102 

Integon General Ins. Corp.; Spellman v. 1010,1097 

Internal Revenue Service; Pfluger v. 824 

International. For labor union, see name of trade. 

International Business Machines; Mally v. . . 1037 

International Paper Co.; Bishop v. . . 821 

International Telephone & Telegraph Corp.; Miller v. ... 851,1015 

ICC; Illinois Commerce Comm'n v. 820 

ICC; Monon Shippers Assn., Inc. v. 828 

ICC; Public Service Comm'n of Ind., Inc. v. 909 

ICC; Simmons v. . 1055 

Inupiat Community of Arctic Slope v. United States 820 

Iowa; Van Hoff v, 1034 

Iris v. United States .... 923 

Irving; Hodel v. 1049 



LXX TABLE OF CASES REPORTED 

Page 

Isadore u Kincheloe 1011 

Isaraphanich v. New York 858 

Islamic Republic of Iran v. McDonnell Douglas Corp 948 

Island Creek Coal Sales Co.; Gainesville u 948 

Israel; Earl v. 951 

Israel v. Walberg 1013 

Italiano v. Ohio 904 

Ivy v. Reed 1067 

Jacintoport Corp.; Greater Baton Rouge Port Comm'n v. 1057 

Jackson, In re 978 

Jackson u General Dynamics, Inc 1063 

Jackson; Michigan v. 810,942 

Jackson u Oklahoma 838 

Jackson v. United States 924,994 

Jackson Pump Co.; Clark v. 840,1000 

Jacob, In re 808 

Jacob v. Attorney Grievance Comm'n of Md 905 

Jacob v. United States 851 

Jacobs; Zerman v. 845,1026 

Jaffe; Mihal v. 1030 

Jago; McGaharan v. 979 

James, In re 950 

James u Alabama State Personnel Bd 825 

James u Tyler 1026 

James; United States v. 978,1046 

James River Corp. ; Salisbury v. 1061 

Jamison v. United States 830 

Jankowski v. United States 1023 

Japan Whaling Assn. v. American Cetacean Society 1053 

Jarrad v. United States 830 

J. C.; Department of Social Services of Rusk County v. 971 

Jefferson v. Mercer 831 

Jefferson v. Muncy 997 

Jefferson v. United States 806 

Jemmott v. United States 998 

Jennell v. United States 837 

Jennings v. Jennings 941 

Jensen v. Heckler 945 

Jeppesen & Co. v. Brocklesby . 1101 

Jin Cha; Warnick v. 920 

Johanns v. United States 850 

John Holman & Sons, Ltd. u Correia 1082 

John Holman & Sons, Ltd. v. Superior Court of Cal. , San Diego Cty. 1082 

John Koerner & Co. v. Plaintiff Class Reps., Corn Deriv. Antitr. Lit. 1057 



TABLE OF CASES REPORTED LXXI 

Page 

Johns v. Supreme Court of Ohio 824 

Johnson, In re 1048 

Johnson; Chicago Tribune Co. v. 915,1027 

Johnson v. Florida 865 

Johnson v, Johnson 920 

Johnson v. Linden Shore Dist 1102 

Johnson; Lojuk v. 1067 

Johnson v. Manson 1063 

Johnson v. Maryland 1093 

Johnson v. McCotter 994 

Johnson v. New York State Court Officers Assn 855,1000 

Johnson v. Rex 967 

Johnson v. Righetti 828 

Johnson v. Tennessee Dept. of Employment Security ... . . 826 

Johnson v. Texas 865 

Johnson v. United States 862 

Johnson; Weeks v 950 

Johnston v. Ann Arbor 947 

Johnston v. Dowling 904 

Jokinen, In re 943 

Jones v. Brown 1068 

Jones v. California . 821 

Jones v. California Institution for Men 950 

Jones; Eagle Books, Inc. v. 920 

Jones v. Greer 1011 

Jones; Hutto v. 916 

Jones v. Jones 830 

Jones v. Lightner . . 801 

Jones v. Lightner Auto Sales . . . .... 801 

Jones; McCotter v. 947 

Jones; Pak-Mor Mfg. Co. v. 948 

Jones v. Postal Workers . . . 1003 

Jones; Preuit & Mauldin v. . . ... ... 1105 

Jones; St. Amand v. . 1065 

Jones v. Smith . . 1073 

Jones v. United States . . 837,981,1006 

Jones v. Wells . . . . . 1102 

Jones Dairy Farm v. Food & Commercial Workers . . . . 845 

Jones & Laughlin Steel Corp. ; Gottschall v. 845 

Joost, In re .... . 814 

Jorandby; Raske v. . . . . 802 

Jordan v Department of State 813,996 

Joseph v. New Orleans Electrical Pension and Retirement Plan . 1006 

Joseph Schlitz Brewing Co.; Transcon Lines, Inc. v. . . 848 



LXXII TABLE OF CASES REPORTED 

Page 

Joshi; Florida State Univ. Health Center v. 948 

J. P. Stevens & Co.; Lex Tex Ltd. v. 822 

J. T. Gibbons, Inc.; Crawford Fitting Co. u 890 

Judge, Court of Common Pleas of Cuyahoga County; Kelly v. 1008 

Judge, Cuyahoga County Court of Common Pleas; Mihal v. 1030 

Judge, 47th Judicial Dist. Court of Tex.; Amend v. 849 

Judge of County Court, Schenectady County; Owen v. 994 

Judge, 162d Judicial Dist. Court, Dallas County; Holloway v. 1037 

Judge, Second Judicial Dist.; Rock v. 1001 

Judge, Superior Court of D. C.; Edwards v. 823 

Judge, Superior Court of D. C.; Sowells u 823 

Judge, Tenth Judicial Circuit of Ala.; Burlington Northern R. Co. v. 1005 

Junction City; McQuay v. 1007 

Junior College Dist. of Metropolitan Kansas City; Sanders v. . ... 922 

Jureczki v. Seabrook 941 

Justice; Camden Fire Ins. Assn. v. 936 

Justice of Village Court, Mt. Kisco Village v. Conway 1100 

Kabanuk v. Minnesota 846 

Kabongo v. United States 1063 

Kadota u United States 839 

Kahikina u Hawaii 950 

Kahliq v. Brown 1110 

Kahn v. Alexander Grant & Co 1058 

Kaiser Aluminum & Chemical Corp. v. Bonjorno 811 

Kaiser Engineers, Inc.; Mauget v. 1057 

Kalec v. Duckworth 860 

Kaltenbach v. Acadian Metropolitan Code Authority 859,906 

Kaminsky, In re 896,1079 

Kane v. Edwards 835 

Kansas; Bieker v. 904 

Kansas; Geisler v. 904 

Kansas; Haislip v. 1022 

Kansas; Hearron v. . . 839 

Kanter, In re . . 991 

Kaplus v. Phillips 1059 

Kaprelian v. United States 1008 

Karabin v. Petsock 857 

Karam v. United States 1060 

Karapinka v. Union Carbide Corp 1060 

Karmun v. Commissioner 819 

Kasvin v. United States 1032 

Kearney & Trecker Corp. v. Gulf South Machine, Inc 902 

Kearns v. United States 821 

Kearson v. Southern Bell Telephone & Telegraph Co 1065 



TABLE OF CASES REPORTED LXXin 

Page 

Keating v. United States 1101 

Keith; Illinois Pro-Life Coalition, Inc., Ill v. 980 

Keith; Strader v. 833 

Keith v. United States 829 

KeUeher; Randall v. 840 

Keller; Hagerty v. 968 

Keller v. United States 1082 

Kelley; Metropolitan County Bd. of Ed. of Nashville County v. . . . . 1083 

Kelley v. United States 860,990 

Kelly v. Warden, House of Correction 853 

Kelly v. Whiting 1008 

Kemp v. Blake 943,998 

Kemp; Bowden v. 891 

Kemp; Burden v. 865 

Kemp; Burger v. 806 

Kemp v. Drake 993 

Kemp; Mathis v. 865,1015 

Kemp; McCleskey v. 812 

Kemp; Messer v. 1088 

Kemp v. Thomas 1048 

Kemp; Tucker v. 1001 

Kemp v. United States 829 

Kemp; Williams v. 806 

Kendall v. United States 1081 

Kendricks u Brown .... 1069 

Kennedy v. Alabama 975 

Kennedy v. Wainwright 1112 

Kenner v. United States 980 

Kenny v. California 860 

Kenton Meadows Co. v. Commissioner 1082 

Kentucky; Batson u 812,942 

Kentucky; Bogard v. 843 

Kentucky; Campbell v. 856 

Kentucky; Chambers v. 1021 

Kentucky; Crane v. 1019 

Kentucky; Harris v. 842 

Kentucky v. Indiana 1 

Kentucky; Shelor v. 919 

Kentucky; Vanover v. . . 953 

Kepreos v. United States ... ... 901 

Kerpelman v. Land ... 820 

Kerr; Bates v. . . . . . 830 

Kerr v. Finkbeiner. . 929 

Kessler v. United States 860 



LXXIV TABLE OF CASES REPORTED 

Page 

Kewanee Oil Co. u Holmes 953 

Key International Mfg., Inc. v. Morse/Diesel, Inc 1039,1078 

Kidwell, In re 1030 

Kimble v. Duckworth 1023 

Kimmelman v. Morrison 815,917 

Kimmelman; Williams v. 838 

Kincheloe; Isadore v. 1011 

King; Lawhorn u 903 

King v. Love 971 

King; Scheppf v. 1035 

King County Superior Court; Likakur v. 835 

Kinloch; Allen v. 946 

Kirmane, In re 814 

Kirby v. United States 901 

Kirchner v. Kirchner 1101 

Kirk v. Rees 838 

Kirkley v. Louisiana 1061 

Klein v. United States 1009 

Kline, In re 896,1030 

Kling; Los Angeles County v. 936,1097 

Klir -y. United States 1022 

Knapp; Whitaker v. 803 

Knight v. United States 1067,1068 

Knoblauch v. Commissioner 830 

Knox v. Teamsters 857 

Koch; Augustyniak v. 840,1015 

Koecher; United States u 815,992 

Koerner & Co. u Plaintiff Class Reps., Corn Deriv. Antitr. Litig. . 1057 

Koller; Richardson-Merrell Inc. v. 808 

Kolman v. Heckler 997 

Komoto u Washington . . ... 1021 

Korb u Pennsylvania .... 831 

Kori Corp.; Wilco Marsh Buggies & Draglines, Inc. v. . 902 

Koscot Interplanetary, Inc. v. Beachley Investments, N. V. . . 1103 

Kosyla v. Illinois 832,907 

Kotvas v. United States 953 

Kouhestanian v. United States 952 

Koutsoubos v. Boeing Vertol 821 

Kraco, Inc. ; Acosta v. 1022 

Krahn, In re 899,1015 

Kramsvogel v. Wisconsin . 901 

Krodel v. Young . 817 

KuUberg u United States . 1007 

Kwang-Wei Han v. Pilato 1056 



TABLE OF CASES REPORTED 

Page 

Kwiatecki ^ United States 905 

Labor and Industrial Relations Comm'n of Mo. ; Wimberly v. 942 

Labor Union. See name of trade. 

Lacayo v. United States 1019 

Lachica v. Immigration and Naturalization Service 1060 

Lackey v. United States 1101 

Laffitte v. United States 862 

Lake Coal Co. v. Roberts & Schaefer Co 120 

Lamb v. United States 953 

Lambert v. United States 1034 

Lamont v. Wolf 825 

Lamp v. Farrier 1009 

Land; Kerpelrnan v. 820 

Landes v. Department of Justice 821,1014 

Landi v. Sui 846 

Lane; Dampier v. 1085 

Lane T>. United States 438 

Lane; United States v. 438 

Lane; Young v. 951 

Langenegger u United States 824 

Lanier v. South Carolina 25 

Lapsley v. Legal Services of Mauniee Valley 1024 

Largo v. United States 1 105 

Larkin, In re 941,1044 

Larsen; Forsyth u 982 

Larson; National Freight, Inc. v. 902 

Larson v. United States . 849 

Lashley; Carrigan v 834,990 

Lassiter-Geers v. Reichenbach 1019 

Las Vegas; Cunningham v. . . . 831 

Latham v. United States 923 

Lauga u United States . . 860 

Lavado v. United States . 1054 

Lavelle v. United States 817 

Lavicky; Moore v. . 1 101 

Lavoie; Aetna Life Ins. Co. v 811 

Law Firm of Daniel P. Foster, P. C. v. United States 1061 

Lawhorn v. King . . . 903 

Lawrence v. Cunningham 1083 

Lawton v Lusby . 805 

Layhue v. United States 854 

Layne v. United States 1085 

Lazard v. United States 908 

La-Z-Boy Chair Co. v. World of Sleep, Inc 823 



LXXVI TABLE OF CASES REPORTED 

Page 

La-Z-Boy Chair Co.; World of Sleep, Inc. v. 823 

L & C Marine Transport, Ltd.; Ward u 904 

Leahey v. McGuire . 860 

Leavitt; Brown v. 836 

LeBlanc v. United States 854 

Lebovitz, In re 977 

Ledford; Cossett u 1065 

Lee v. Henderson 833 

Lee u Illinois 812 

Lee v. United States 1081 

Leek v. United States 1104 

Leeke; Covington v. 856 

Legal Services of Maumee Valley; Lapsley v. 1024 

Lehman v. United States 994 

Lennon; Ochoa v. 979 

Leone v. Pierce County Medical Bureau 1057 

Lepiscopo v. York 1105 

Lepman v. New Jersey Racing Comxn'n 996 

Lerner; Wold v. 983 

Leroy v. Morris 831 

Levitt v. Monroe 1034 

Lewingdon u Ohio 982 

Lewis v. Blackburn 902 

Lewis u Illinois 865 

Lewis v. Port Authority of N. Y 944 

Lewis u United States 1024 

Lex Tex Ltd. v. J. P. Stevens & Co 822 

Li; Tsai u 826 

Libbey-Owens-Ford Co. v. Shatterproof Glass Corp 976 

Liberty Lobby, Inc.; Anderson v. 811 

Liberty National Bank & Trust Co. of Louisville v. George 821 

Library of Congress v. Shaw 815,992 

Light v. United States 1034 

Lightner; Jones u 801 

Lightner Auto Sales; Jones v. 801 

Lightsey v. Oklahoma 841,1000 

Lika u United States 1022 

Likakur v. King County Superior Court 835 

Lillard u Greer 1084 

Lincoln; Harrod v. 835 

Linden Shore Dist.; Johnson v 1102 

Liphete v. Stierheim 1069 

Lipsman v. New York . . 1066 

Little; Michigan v. 1024 



TABLE OF CASES REPORTED LXXVII 

Page 

Little, Brown & Co.; Martin v 834 

Little Flower's Children's Services; Torres v. 864 

Lizzana v. Schwegmann Giant Supermarkets, Inc 854 

Local. For labor union, see name of trade. 

Lockhart; Burton v. 1011,1112 

Lockhart v. Collins 1013 

Lockhart; GUck u 834,997,1084 

Lockhart; Grisso v. 841 

Lockhart; Hayes v. 922 

Lockhart; Hill v. 52 

Lockhart; Holloway v. 836 

Lockhart; Lovelace v. 1010 

Lockhart v. McCree 816 

Lockhart; Pitts v. 982 

Lockhart; Williams v. 832 

Lockheed Missiles & Space Co.; Sakellar v. 1084 

Lodi Medical Group, Inc. ; Roa v. 990 

Lodowski; Maryland v. 811 

Loftsgaarden; Randall u 978 

Lojuk v. Johnson . . 1067 

Lombard; Spika v. 1056 

Lombardi; Phillips v. 861 

Lombard's Inc. v. Prince Mfg. , Inc 1082 

London v. Manhattan Life Corp 827 

Long v. United States 856 

Longshoremen v. Davis 899,1098 

Longshoremen v. Ward . . 1008 

Longshoremen; West Gulf Maritime Assn. v. 844 

Lopes v. United States ... . 1063 

Lopez v. Dallas Offset, Inc .... .... 830 

Lopez v. United States ... . 1054 

Lorain Journal Co. v. Milkovich . 898,953 

Lord; Chandler v . . .. . .... 853,1078 

Los Angeles; Golden State Transit Corp. v. , . . . 811 

Los Angeles; Miller v. 995 

Los Angeles u Preferred Communications, Inc. 979,1048,1080,1099 

Los Angeles Branch NAACP v. Los Angeles Unified School Dist. 919 

Los Angeles County v. Kling 936,1097 

Los Angeles County; Perruzza v. . . .... 936 

Los Angeles County Employees; County Sanitation Dist. No. 2 v. . 995 
Los Angeles NAACP; Los Angeles Unified School Dist. v. . 919 

Los Angeles Unified School Dist.; Los Angeles Branch NAACP v. 919 
Los Angeles Unified School Dist. v. Los Angeles NAACP . ... 919 
Loud Hawk; United States v. ... . 302 



LXXVIII TABLE OF CASES REPORTED 

Page 

Louisiana; Busby v. 873,1015 

Louisiana; Kirkley v. 1061 

Louisiana; Taylor v. 1022 

Louisiana; Wilson v. 911,1027 

Louisiana Public Service Comm'n v. FCC 809,1002 

Love; King v. 971 

Love v. United States 1081 

Lovelace v. Lockhart 1010 

Lovelace v. United States 907 

Lovett, In re 1079 

Lovett u. Michigan 1069 

Lovinger v. Illinois 919 

Lowe v. Cox Communications, Inc 982 

Lucas v. New York 911 

Lucci v. United States 843 

Lucero u Colorado State Bd. of Law Examiners 856 

Lucien v. Chrans 1067 

Lucker v. United States 909 

Lummus Co. ; Brancewicz v. 1085 

Luna; Chapman v. 947 

Lunday-Thagard Co. v. Department of Interior 1055 

Lundien v. United States . . 1064 

Lundy v. Union Carbide Corp 848 

Lupert v. California State Bar 916 

Luqman v. Ohio 1086 

Lusby; Lawton v. 805 

Lusby; T. G. & Y. Stores, Inc. v. 818,1014 

Luther; Mercer v. 859 

Luther; Owens v. 839,852 

Lutjeharms v. Rose 817,1014 

Luxury Blankets, Inc. v. United States 849,1015 

Lykes Brothers S.S. Co.; Adams v. 840 

Lykes Brothers S.S. Co.; Castorina v. 846 

Lyles v. Illinois 859 

Lyons; McCotter v. 1073 

Mabel; Euclid v. 826 

Mabin v. Howard Univ. 922 

MacDonald; Ortho Pharmaceutical Corp. v . 920 

MacDonald, Sommer & Frates v. Yolo County 917 

Mack v. Williams 852 

Madej v. Illinois 935,1038 

Madison County Comm'rs; Bezotte v. 1023 

Madrid v. Montelongo 1073 

Maggette v. Cook County Police and Corrections Merit Bd. . 945,1077 



TABLE OF CASES EEPORTED LXXIX 

Page 

Maggio; McQueen v. 852 

Maggio; Vernon v. 945,1078 

Maggio; Williams v. 1011 

Maggio; Zeno v. 1085 

Mahdavi v. Shirani 960 

Mahfoud; Eastern Air Lines, Inc. v. 213 

Maine; Campbell v. 1032 

Maine; Friel v. 1032 

Maine; Maine State Troopers Assn. v. 802 

Maine; Marshall v. 908 

Maine v. Moulton 159 

Maine u Taylor 943,1047 

Maine; United States v. 808,897 

Maines v. Secretary of State of Me 947 

Maine State Troopers Assn. v. Maine 802 

Mainsah v. Immigration and Naturalization Service 977 

Mallet v. United States 1062 

Mallonn; Sheffer v. 1083 

Malloy v. United States 1009 

Mally v. International Business Machines 1037 

Mally v. New York Univ. 1035 

Mandanici v. United States 1082 

Manecke; School Bd. of Pinellas County v. 1062 

Manhattan Industries, Inc. v. Goldstein 1005 

Manhattan Industries, Inc.; Sweater Bee by Banff, Ltd. v. 819 

Manhattan Life Corp. ; London v. 827 

Mankin v. Ohio 825 

Mann, In re 917,1099 

Mann v. Spiegel 935 

Mann v. United States 1007 

Manson; Johnson v. 1063 

Mansour; Green v 64,977,1111 

Manzur v. McCotter 833 

Marathon Oil Co.; Moses v. 835 

Marathon Oil Co.; Tenneco West, Inc. v. 845 

Marathon Petroleum Co. v. United States 1105 

Marcaccio u United States 1100 

Marcone v. Penthouse International, Ltd 864,1014 

Marcon, Ltd. v. Helena Rubinstein, Inc . . 825 

Maresca v. Cuomo . . . 802 

Marin v. Department of Health and Human Services 1061 

Marin v United States 859 

Marine Midland Bank; Independent Bankers Assn. of N. Y., Inc. v. 812 
Mark v. Caldwell . . 945 



LXXX TABLE OF CASES REPORTED 

Page 

Marquez; Chatman v. 841 

Marrapese v. Rhode Island 921 

Marsh; Fritz v. 832 

Marsh v. Oregon 997 

Marsh; Pacyna v. 1078 

Marshall; Bankers & Shippers Ins. Co. of N. Y. v. 1056 

Marshall v. Court of Appeals of Md 802 

Marshall v. Maine 908 

Marshall Field & Co.; Paskuly v. 1064 

Martin v. Little, Brown & Co 834 

Martin u Meese 862 

Martin v. Ohio 1073 

Martin; Praylow v. 1009 

Martin; Roach v. 865,1014 

Martin; Shahryar v. 912 

Martin v. Two-R Drilling Co 849 

Martinez-Torres v. United States 859 

Martinez- Valdez u United States 945 

Martinez- Villareal v. Arizona 975 

Martin Steel Constructors, Inc.; Harvis Construction, Inc. v. 817 

Martin-Trigona, In re 1034,1061 

Martin-Trigona v. Federal Communications Comm'n 1034 

Martin-Trigona v. Ferrari 860 

Martorano v. United States 949 

Marty v. United States 1061 

Maryland; Chaney v. 1067 

Maryland v. ElFadl 811 

Maryland; Froeman *o. 860 

Maryland; Green v. 1066 

Maryland; Holsey u 1004,1066,1077 

Maryland; Howell v. 996, 1077 

Maryland; Johnson v. 1093 

Maryland v. LodowsM 811 

Maryland; Sellner v. 1066 

Maryland; Smith u 854 

Maryland; Whittlesey v. 858,1000 

Maschner; Smith v. 996 

Masiello v. United States 996 

Mason v. Continental Group, Inc ... 1087 

Massachusetts; Aiello v. 919 

Massachusetts; Allied Bond & Collection Agency v. 991 

Massachusetts; Goldman u 906 

Massachusetts; Pavilonis v. 805 

Massachusetts Citizens for Life, Inc.; FEC v. 1049 



TABLE OF CASES REPORTED LXXXI 

Page 

Massachusetts Hospital School v. Stock 844 

Massey; Dunlap i>. 1063 

Master Printers of America v. Brock 818 

Masters u Commissioner 907 

Masters v. Texas 853 

Mastropieri v. United States 825 

Matecki -V. United States 1009 

Mathis v. Kemp 865,1015 

Matrix Enterprises, Inc. v. Millington Telephone Co 903 

Matsushita Electric Industrial Co. v. Zenith Radio Corp 941 

Mattox v. United States 1050 

Maturo v. United States 1020 

Mauget v. Kaiser Engineers, Inc 1057 

Mauldin u United States 829 

Max Daetwyler Corp. v. Meyer 980 

Maxneld; Sinclair International v. 1057 

Maxwell v. United States 818 

May, In re 1100 

Mayfield; Ross v. 835 

Mayhew; Caprito v. 1020 

Mayor of D. C. ; Currie v. 1060 

Mayor of New York City; Augustyniak u 840,1015 

Mays v. United States 998 

Mazak v. United States 840,1097 

Mazurkiewicz; Poli v. 998 

Mazzella v. United States 1006 

McAfee v. McCotter 907 

McAllister v. United States 829,839 

McCallister v. United States 1068 

McClellan; McSurely v. 1005 

McCleskey v. Kemp 812 

McClintock u United States 822 

McCommon v. Mississippi 984 

McConnick u Cain ... 1010 

McCorstin v. United States Steel Corp 1008,1097 

McCotter; Andino v. . 839 

McCotter; Butler v. . 855 

McCotter; Delespine v. 906 

McCotter u Fransaw . . . 864 

McCotter; Hernandez v . 832 

McCotter; Hicks v. 952 

McCotter; Johnson v 994 

McCotter v Jones . . . . 947 

McCotter v. Lyons 1073 



LXXXII TABLE OF CASES REPORTED 

Page 

McCotter; Manzur v. 833 

McCotter; McAfee v. 907 

McCotter; Morris v. 1011 

McCotter v. Muniz 934 

McCotter; Parker v. 855 

McCotter; Pinkerton v. 865,990 

McCotter; Price v. 1063 

McCotter; Prince v. 1012 

McCotter; Seaton v. 836 

McCotter; Shabazz <v. 979 

McCotter; Thomas u 935,1015 

McCotter; Tubbs v. 997 

McCrary v. Franklin State Bank 949 

McCree; Lockhart v. 816 

McCullough; Texas u 897 

McDade; Harrison v. 1066 

McDonald v. Tennessee 951 

McDonnell Douglas Corp.; Islamic Republic of Iran v. 948 

McDowell v. United States 952 

McEvers; Cole v. 995 

McFarland v. Bethlehem Steel Corp 844 

McGaharan u Jago 979 

McGarry; Coombs v. 835,1015 

McGee v. First Federal Savings & Loan Assn. of Brunswick 905 

McGiffen v. United States 842 

McGlory u Yoka 997,1077 

McGreevy v. Dannon Co 828 

McGuire; Leahey u 860 

Mcllhany; Adams v. 1101 

McKaba, In re 991 

McKague v. Nevada 1038 

McKenna v. Nevada 1093 

McKenzie v. United States 1086 

McKinney v. Ellis 1022 

McKnight v. Wainwright 1064 

McLain v. Walker 1061 

McLaughlin; 324 Liquor Corp. v. 811 

McLaughlin v. United States 944,1003 

McLaughlin; Yorkshire Wine & Spirits v. . 811 

McLaurin v. Syracuse Univ. . .... 1011 

McLean Trucking Co.; Faison v 856 

McMackin; Rodman v. . . . . 1009 

McMackin; Wilson v. 1065 

McMahon v. Green 819 



TABLE OF CASES REPORTED LXXXIII 

Page 

McMananiy -v. United States 830 

McMillan v. Pennsylvania 815 

McMullen V. United States 829 

McNamara; Reehlnian v. 1032 

McQuay v. Junction City 1007 

McQueen v. Barton 1085 

McQueen v. Maggio 852 

McQueen v. U. S. District Court 1064 

McSureley; Brick v. 1005 

McSurely v. McClellan 1005 

McWherter; Patterson v. 854 

Meachum v. Worthen Bank & Trust Co 844 

Mead v. United States 948 

Meadows, In re 943 

Meadows v. Alabama .... 828 

Meadows v. New York 820 

Mead Paper Corp. ; French v. 820 

Mead School Dist. No, 354; Grove v. 826 

Mearls; Dunn v. 821 

Medford; Medford Assembly of God v. 1020 

Medford Assembly of God v. Medford 1020 

Medina v. United States 948 

Medlin v. United States 862 

Medtronic, Inc. ; Cordis Corp. v. 851 

Meeker v. New Mexico 845 

Meese; Corley v. 837 

Meese; Martin v. 862 

Meiri v. Dacon 829 

Meloni; Baron v. 1058 

Melton; Zerrnan v. 845,1026 

Memphis Community School Dist. v. Stachura . . 918 

Mendell, In re 941 

Men's Wearhouse, Inc. ^. Helms . . 804 

Mental Health and Mental Retardation Authority; Wheeler v. . . 824 

Mercer; Jefferson v . 831 

Mercer v. Luther ... . . 859 

Merchants National Bank & Trust Co. of Indianapolis; Gaines v. . 1030 

Merck & Co.; Par Pharmaceutical, Inc.?;. . . . .... 981 

Merida v. United States . 829 

Meritor Savings Bank, FSB v. Vinson . . . . 1047 

Merit Systems Protection Bd.; Allen v. . . ... 834 

Merit Systems Protection Bd.; Stone v. . 1033 

Merrell Dow Pharmaceuticals Inc. v Thompson . 1004 

Merrill v. United States ... . 837 



LXXXIV TABLE OF CASES REPORTED 

Page 

Merrill Lynch & Co.; Ceasar v. 844 

Merrill Lynch Relocation Management, Inc. ; Clopper u 823 

Merwine v. Board of Trustees for State Insts. of Higher Learning . 823 

Meskill; Cataldo v. 916 

Messer v. Kemp 1088 

Messerschmitt Bolkow Blohm, GmbH v. Walker 812 

Metge v. Bankers Trust Co 1057 

Metge; Bankers Trust Co. v. 1072 

Methodist Hospital of Brooklyn v. State Ins. Fund 801 

Metropolitan County Bd. of Ed. of Nashville County v. Kelley .... 1083 

Meyer; Max Daetwyler Corp. v. 980 

Meyer v. Oregon 990 

Meyers Industries, Inc. v. Prill 948,971 

MGPC, Inc. v. Department of Energy 823 

Michaels v. Michaels 1057 

Michelle Marie W. v. Riley 1043 

Michigan v. Blackburn 811,989 

Michigan v. Bladel 810,942 

Michigan; Carigon v. 854 

Michigan v. Jackson 810,942 

Michigan v. Little 1024 

Michigan; Lovett v. 1069 

Michigan Academy of Family Physicians; Heckler v. 815 

Mickens v. United States 1104 

Mid-Continent Bottlers, Inc.; Drivers & Helpers v. 947 

Middlesex Presbyterian Church; Presbytery of Beaver-Butler v. . 887 

Middle South Energy, Inc.; Ratepayers Fight Back v. 1102 

Midgett; Sackett-Chicago, Inc. v. 909 

Midlantic National Bank v. N. J. Dept. of Environmental Prot 494 

Midwest Processing Co.; Basin Electric Power Cooperative v. 1083 

Midwife v. Director, State Department of Social Services 1012 

Midwife v. Woods 944 

MihaluJaffe 1030 

Mihal v. Sargis 803,1015 

Milburn v. United States 994 

Milford Radio Corp.; PaceUa v. 844 

Milian-Rodriguez v. United States . 845 

Milkovich; Lorain Journal Co. v. 898,953 

Miller v. Department of Health and Human Services 852 

Miller v. Dillon ... 857 

Miller v. Elrod 951 

Miller v. Fenton 104 

Miller v. First Federal of Mich 849 

Miller v. Henry 824 



TABLE OF CASES REPORTED LXXXV 

Page 

Miller v. Hogg Brothers Partnership 1007 

Miller u International Telephone & Telegraph Corp 851,1015 

Miller u Los Angeles 995 

Miller v. New York 951 

Miller u United States 861,994,1037 

Miller u Webster 858 

Miller- Wohl Co. v. Commissioner of Labor & Industry of Mont. . . 1045 

Milliken; Blue Cross & Blue Shield of Mich. v. 805 

Milliken; Nordgren u 1032 

Millington Telephone Co.; Matrix Enterprises, Inc. v. 903 

Mills; Bowring v. 838 

Mills v. United States 1061 

Mims v. United States 861 

Mine Workers; Duquesne Light Co. v. 863 

Mine Workers v. Helen Mining Co 1006 

Mine Workers; Pierce u 1104 

Mink; Republican Party of Haw. v. 1301 

Minnesota; Carey v. 1010 

Minnesota; Gobley v. 922 

Minnesota; Kabanuk v. 846 

Minnesota; White v. 1057 

Minnesota Comm'r of Public Safety; Nyflot v. 1027 

Minnesota State Ethical Practices Bd.; National Rifle Assn. v. . . 1082 

Minnesota Timber Producers Assn. v. American Mut. Ins. Co. . . . 1059 

Minor v. United States 991 

Mintz v. California 980 

Mintzes; Corbett v. 1010 

Mir u Fosburg 981 

Misleh v. United States 1054 

Mississippi; Fairley v. . . 855 

Mississippi; Green v . 979 

Mississippi; McCommon v. . . . . 984 

Mississippi; Moreno v . . . . 949 

Mississippi; Nickens u . 1104 

Mississippi; Page v. 950 

Mississippi River Bridge Authority; Anschuetz & Co. v. . . . 812 

Mississippi State Bar Assn.; Sanders v. . ... 844 

Missouri v. Blair 1049 

Missouri; Grady v. . . .... 951 

Missouri; Pepper v. . ... . .... 830 

Missouri; Ross v. . . . . . . 1066 

Missouri; Thomas v. ... 842 

Missouri State Highway Patrol; EEOC v. 828 

Mitchell; Ausley v. . . 1100 



LXXXVI TABLE OF CASES REPORTED 

Page 

Mitchell v. Davis 949 

Mitchell; Etheridge v. 1019,1111 

Mitchell v. United States 839,983,1066 

Mitchell Bros. Santa Ana Theater; California ex rel. Cooper v. . 948,1077 

Mitsui & Co. (U.S.A.) v. Western Concrete Structures Co 903 

Mobil Oil Corp.; Typhoon Car Wash, Inc. v. 981 

Mock v. United States 838 

Modine Mfg. Co. v. Environmental Protection Agency 1005 

Moeller v. Carradine 804 

Moffitt v. United States 1013 

Monarch Long Beach Corp. v. Soft Drink Workers 1020 

Monarch Long Beach Corp. ; Soft Drink Workers v. 1020 

Monfort of Colo., Inc.; Cargill, Inc. u 1031,1049 

Monick v. United States 817 

Monon Shippers Assn. , Inc. v. Interstate Commerce Comm'ij 828 

Monroe; Levitt v. 1034 

Montana v. Hodel 919 

Montana; Smith v. 1073 

Montelongo; Madrid v. 1073 

Montgomery v. Alabama 904 

Montgomery v. United States 979 

Montgomery County; Fudger v. 947 

Montgomery County Dept. of Parole and Probations; Simons v. . 979 

Montgomery County Dept. of Police; Simons v. 1054 

Montgomery Ward & Co. v. Dabney 904 

Moore, In re 916 

Moore; Boating Industry Assns. v. 895 

Moore v. Bonner 827 

Moore; Des Moines v. 1060 

Moore v. Indiana 1026 

Moore v. Lavicky 1101 

Moore v. Orner, Shayne & Reizner, Inc 906 

Moore v. Rice 983 

Moore u Texas 1113 

Moore u United States 979 

Mora v. United States 1083 

Moran; Hudson v. 981 

Moran v. Pima County 989 

Moran v. United States 1102 

Moreland v. Poss 807 

Moreno v. Mississippi 949 

Moreno-Sevano v. United States 838 

Morgan v. Firestone Tire & Rubber Co 843 

Morgan Adhesives Co. v. Chemtrol Adhesives, Inc 843 



TABLE OF CASES REPORTED LXXXVH 

Page 

Morganstern v. United States 1033 

Morlan v. United States 837 

Morris; Aldridge v. 1062 

Morris; Barker u 1063 

Morris; Brofford v. 872,1000 

Morris; Fulsom v. 952 

Morris; Goudlock v. 979 

Morris v. Illinois 866 

Morris; Leroy v. 831 

Morris v. McCotter 1011 

Morris; Provens v. 865 

Morris; Turner v. 906 

Morrison v. Federal Deposit Ins. Corp 1019 

Morrison; Kimmelman v. 815,917 

Morrison Assurance Co.; Preston Carroll Co. u 1060 

Morse/Diesel, Inc.; Key International Mfg., Inc. u 1039,1078 

Morton u California 1060 

Moses v. Marathon Oil Co 835 

Moss v. Commissioner 979 

Mother Goose Nursery Schools, Inc. v. Sendak 1102 

Motor Vehicle Mfrs. Assn. of U. S., Inc.; American Methyl Corp. v. 1082 

Motta u Samuel Weiser, Inc 1033 

Mottaz; United States v. 994,1099 

Moulton; Maine v. . 159 

Moyer v. District Director of Internal Revenue Service 1103 

Mueller, In re 1044 

Mueller v. Dieball 864 

Mueller v. Pevsner . . . ... .... . 846 

Muhammad v. Semicole Allied Van Lines 1103 

Muhammad v. United States . . . 858,981,1085 

Muka v. Carter . 895,1027 

Mullady v. Smith . 949 

Mullen v. Skinner . . . 980 

Mullins v. Newsome . .... 1069 

Mulvey v. Pennsylvania ... 994 

Muncy; Jefferson v. . . . ... 997 

Mundy; Gans v . . 1010 

Municipal Court of Cal., Los Angeles County; Aleem v. . . 832 

Muniz; McCotter v. . . . . . 934 

Munro v. Socialist Workers Party . 1049 

Muriel v. United States . ... 1013 

Murray City; Potter v. . . 849 

Musicant v. Terry . . . 856 

Mustacchio v. United States . . . . 906 



LXXXVHI TABLE OF CASES REPORTED 

Page 

Muth v. Showers 1008 

M/V Capt. W. D. Cargill; Pacific Employers Ins. Co. v. 909 

M.V. "Nedlloyd Rotterdam"; Binladen BSB Landscaping v. 902 

Myers; Alcoa v. 811,901 

Myrick v. Petsock 1067 

Nabors u United States 851,1077 

Naegele Outdoor Advertising Co.; California Dept. of Transp. v. . . 1003 

Naegele Outdoor Advertising Co.; Desert Outdoor Advertising v. 1003 

Nags Head; R. O. Givens Signs, Inc. v. 826 

Namenwirth v. Board of Regents of Univ. of Wis. System 1061 

Nantahala Power & Light Co. v. Thornburg 1018 

Napolitano v. United States 842 

Nash, In re 1030 

Nassau County Dept. of Social Services; Blake v. 862 

National Director of Veteran's Administration; Woodside v. 851 

National Distillers & Chemical Corp. v. Pratt 849 

National Elevator Industry, Inc.; Elevator Constructors v. 819 

National Freight, Inc. v. Larson 902 

National Freight, Inc. v. United States 1105 

National Labor Relations Bd.; Allbritton Communications Co. v. . . 1081 

National Labor Relations Bd.; Allen u 1101 

National Labor Relations Bd.; Clear Pine Mouldings, Inc. v. 1105 

National Labor Relations Bd.; Ohio New & Rebuilt Parts, Inc. v. 1020 

National Labor Relations Bd.; Truck Drivers v. 901 

National Rifle Assn. v. Minnesota State Ethical Practices Bd 1082 

Natural Footwear Ltd.; Hart Schaffiier & Marx v. 920 

Natural Gas Pipeline Co. v. Federal Energy Regulatory Comm'n . . 1056 

Nazarian v. Nazarian 1007 

Neal u Texas 818 

Nebraska; South Dakota v. 941 

Negrito Comercial, S.A. v. Sea-Land Service, Inc 1033 

Nelson v. Pleasant Grove City Corp 936 

Nethery u Texas 1110 

Network Video; New York v. 918 

Neumann v. United States 861 

Nevada; McKague v. 1038 

Nevada; McKenna v. 1093 

Nevada; New Jersey v. 917,1045 

Nevada; Smith v. 1104 

New; Western Reserve Oil & Gas Co. u 1056 

Newblatt; Hassain v. 836 

New Boston; Raskiewicz v. 845 

Newby v. Department of Labor 898 

New England Medical Center Inc.; Penza v. 802 



TABLE OF CASES BEPORTED LXXXIX 

Page 

New Jersey; Helfricht u 807,1008 

New Jersey v. Nevada 917,1045 

New Jersey; Petrillo v. 922 

New Jersey; Smith v. 820 

New Jersey Dept. of Environmental Prot. ; Midlantic Nat. Bk. v. . . 494 

New Jersey Dept. of Environmental Prot. ; O'Neill v. 494 

New Jersey Racing Comm'n; Lepman v. 996 

New Jersey Zinc Co.; El Cid, Ltd. v. 1021 

Newman v. Bakko 833 

New Mexico; Doe v. 1063 

New Mexico v. Earnest 918 

New Mexico; Meeker u 845 

New Mexico; Pascarella v. 994 

New Mexico; Wiggins v. 831 

New Motor Vehicle Bd.; Wilmshurst v. 936 

New Orleans Dept. of Police; Bruno v. 805 

New Orleans Electrical Pension and Retirement Plan; Joseph v. . . . 1006 

Newsome; Brown v. 982 

Newsome; Mullins v. 1069 

Newspapers, Inc.; Certain Unnamed Prospective Defendants v. . 1061 

New York; Abdullah v. 919 

New York; Bock -v. 996 

New York; Brand v. 828 

New York; Brown v. 855 

New York v. Class 809,1031 

New York; Foster u 857 

New York; Fuentes v. 906 

New York; Gordon u 1009 

New York; Isaraphanich v. 858 

New York; Lipsman v. 1066 

New York; Lucas v. ... 911 

New York; Meadows v . . 820 

New York; Miller v. . .... 951 

New York v. Network Video . . 918 

New York; Petty v. . . . . . 1064 

New York; Pitt v. . . .... 922 

New York v. P. J. Video, Inc. . 918 

New York; Richards v. . . . 1066 

New York; Sailor u 982 

New York; Whitaker u . 830 

New York City; Adventurers Whitestone Corp. v. . . 935 

New York City; Grumman Ohio Corp. v. . . . 1081 

New York City; Heckler v. 815 

New York City; O'Neill v. . 494 



XC TABLE OF CASES REPORTED 

Page 

New York City Health and Hospitals Corp.; Carrion u 842,1015 

New York Council Assn. of Civilian Technicians v. FLRA 846 

New York Marine Managers, Inc. v. Helena Marine Services 850 

New York State Court Officers Assn.; Johnson v. 855,1000 

New York State Dept. of Health; Farkas v. 1033 

New York State Dept. of Transportation; Rothman v. 1032 

New York State Liquor Auth. ; Brown-Forman Dists. v. 814,977, 1079, 1099 

New York State Nurses Assn. v. St. Joseph's Hospital 827 

New York Telephone; Whigham v 1011 

New York Telephone Co.; Cicirello v. 823 

New York Univ.; Mally u 1035 

Niagara Frontier Tariff Bureau; Square D Co. v. 815,1017,1080 

Nichols v. Texas 1034 

Nickels; Bernard v 1065 

Nickens v. Mississippi 1104 

Nickson Industries, Inc.; Rol Mfg. Co. v. 843 

Nilson Van & Storage v. United States 818 

Noble V. United States 818 

Nokes v. United States 827 

Nordgren u Milliken 1032 

North American Reporting, Inc. u United States 905 

North Carolina; Fuller v. 1065 

North Carolina; Smith v. 1026 

North Carolina Dept. of Human Resources; Turner v. 1011,1111 

North Carolina Dept. of Transp. v. Crest Street Community Council 1049 

North Carolina State Bar; Sheffield v. 981 

Northeastern International Airways v. Florida Dept. of Revenue . . 891 

Northeast Regional Parole Comm'n; Di Napoli v. 1020 

Northern Assurance Co. of America; Burriss v. 821 

Northern Cal. Retail Clerks Union & Food Employers Joint Pen- 
sion Trust Fund v. Award Service, Inc 1081 

Northern Oil Co. u Standard Oil Co. of Cal 821 

North Miss. Savings & Loan Assn.; Hudspeth v. 1054 

North Side Lumber Co. v. Block 931 

Northwest Central Pipeline Corp. v. Corporation Comm'n of Kan. 812 

Norton u Illinois . . 803 

Norwood v. INA Life Ins. Co 1059 

Nottingham u United States 854 

N. P., In re 976 

Nyflot u Minnesota Comm'r of Public Safety 1027 

Oates v. United States 857 

Oats v. Florida . . 865 

Obad; American S.S. Co. v. . . 848 

O'Boyle, In re 896,1030 



TABLE OF CASES REPORTED xci 

Page 

O'Brien; Eubanks v. 904 

O'Brien; Fay v. 854 

Observer Transportation Co.; Blackmon v. 864 

Occidental Oil Shale, Inc. v. State Bd. of Land Comm'rs of Colo. . . 817 

Oceanic Trade Alliance Coun. Int'l; All American Life & Cas. Co. v. 819 

Oceanport; Pietroniro v. 1020 

Oehoa v. Lennon 979 

O'Connor v. Ortega 1018, 1048 

O'Connor; Treasury Employees v. 909 

O'Connor v. United States 1050 

O'Dell, In re 1112 

Odinga v. United States 841 

Oettinger v. Oettinger 912 

O'Farrell; Porter v. 825 

Office of Personnel Management; Bronger v. 1101 

Office of Personnel Management; Ginnodo v. 848 

Offshore Logistics, Inc. v. Tallentire 816,1003,1017 

Ogberaha v. United States 1103 

Oglala Sioux Tribe v. South Dakota 1102 

Ohio v. Akron Airport Post No. 8975 1058 

Ohio; Calhoun v. 983 

Ohio; Elliott v. 1058 

Ohio; Hunt v. 840 

Ohio; Italiano v. 904 

Ohio; Lewingdon v. 982 

Ohio; Luqrnan v. 1086 

Ohio; Mankin v. 825 

Ohio; Martin v. 1073 

Ohio; Patterson v. 860,1010 

Ohio; Pointer v. 908 

Ohio; Rogers v. 1002 

Ohio; Welch v. 907,1010 

Ohio Civil Rights Comrn'n v. Dayton Christian Schools, Inc 978 

Ohio Dept. of Justice; Campbell v. 840,990 

Ohio High School Athletic Assn.; Zeiler v. 818 

Ohio Liquor Control Comm'n; Haddix v. 997,1077 

Ohio New & Rebuilt Parts, Inc. v. National Labor Relations Bd. . 1020 

Ohle -y. Pennsylvania 1083 

Oil Workers; American Petrofina Co. of Tex. v. 943 

O'Kane v. Ford Motor Co 888 

O'Keefe; Taylor u 888 

Okello v. Department of Health and Human Services . 1036 

Oklahoma; Bewley v. 829 

Oklahoma; Cartwright u 1073 



xcn TABLE OF CASES REPORTED 

Page 

Oklahoma; Cooks u 935 

Oklahoma; Hatch u 1073 

Oklahoma; Jackson v. 838 

Oklahoma; Lightsey v. 841,1000 

Oklahoma; Shabazz u 1068 

Oklahoma; Stafford v. 865 

Oklahoma; Villanueva v. 901 

Olinger v. United States 839 

Oliva v. United States 1068 

Olympic Sports Products, Inc.; Whittaker Corp. v. 1060 

Omaha; Smith v. 1068 

Oman v. H. K. Porter Co 970 

On-Deck, Inc. v. Rostad 1006 

Oneida Indian Nation v. Houdenosaunee 823 

O'Neil v. Florida 861 

O'Neill v. New Jersey Dept. of Environmental Protection 494 

O'Neill v. New York City 494 

Opelousas Housing Authority; Cunningham u 1007 

Operating Engineers v. Pennsylvania 1060 

Oregon; Cameron u 1069 

Oregon; Marsh v. 997 

Oregon; Meyer v. 990 

Oregon Workers' Compensation Bd.; Reed v. 842 

Orner, Shayne & Reizner, Inc.; Moore v. 906 

Ornsbey v. Tulare 842 

Orr; Gillis v. 908 

Ortega; O'Connor v. 1018,1048 

Ortho Pharmaceutical Corp. v. MacDonald 920 

Otis v. Sears, Roebuck & Co 854 

Owen v. Judge of County Court, Schenectady County 994 

Owens u Baer 842 

Owens v. Bourns, Inc 1038 

Owens; Bowen v. 1046 

Owens v. Freeman 838,990 

Owens; Heckler u 899 

Owens u Luther 839,852 

Owens v. Ryan 1064 

Owens v. United States 857,990,1085 

Owners of Ridgecrest Mobile Home Park; Calver v. 1105 

Ozark Air Lines, Inc. v. Air Line Pilots Assn 903 

P., In re 976 

Pacella v. Milford Radio Corp 844 

Pacella u Radio Station WMRC 844 

Pacific Care Center, Inc.; St. Joseph's Hill Infirmary, Inc. v. 801 



TABLE OF CASES REPORTED xcra 

Page 

Pacific Employers Ins. Co. v. M/V Capt. W, D. Cargill 909 

Pacific Intermountain Express Co.; Springston v. 1023 

Pacyna v. Marsh 1078 

Padron v. United States 855 

Page v. Mississippi 950 

Painter v. Alaska 990 

Pak-Mor Mfg. Co. v. Jones 948 

Palazzo v. Gulf Oil Co 1058 

Pallett, In re 814,943 

Palmer v. Seattle 828 

Palo Alto; Court House Plaza Co, v. 945,1077 

Pan American World Airways, Inc. v. Cook 1109 

Pando v. United States 831 

Papasan v. Allain 1004 

Papasan; Daniels v. 996 

Pappanikolaou v. Administrator of Veterans Administration 851 

Pappanikolaou v. Secretary of Army 949 

Pappy, Kaplon, Vogel & Phillips v. Aragon 1054 

Papse v. United States 861 

Paralyzed Veterans of America; Department of Transportation v. 918,992 
Parish. See name of parish. 

Park v. El Paso Bd. of Realtors 1102 

Park County Resource Council, Inc. v. Department of Agriculture . 807 

Parker; Bruner v. 827 

Parker v. Fairman 1066 

Parker; Hamm v. 1103 

Parker u McCotter 855 

Parks v. Belletire 918 

Par Pharmaceutical, Inc. v. Merck & Co 981 

Parra v. California 1023 

Parrish, In re 943 

Parsons Steel, Inc. v. First Ala. Bank 518 

Parton; Wyrick v. 995 

Pascarella u New Mexico 994 

Pasco v. Immigration and Naturalization Service 1033 

Pascua Yaqui Tribe; Val/Del, Inc. v. 920 

Pascuel-Soler v. United States 953 

Paskuly v. Marshall Field & Co 1064 

Patchett v. Patchett 850 

Patel v. Flying Tiger Line, Inc 947 

Patrascu, In re 1100 

Patten v. Florida . 876 

Patterson u Buena Vista Distribution Co 1013 

Patterson; Coughlin v. 1100 



XCIV TABLE OF CASES REPORTED 

Page 

Patterson u Georgia Theatre Co 1024 

Patterson u McWherter 864 

Patterson u Ohio 860,1010 

Patterson v. United States 830 

Paul v. United States 1019 

Paulussen u Herion 899,1017,1031,1047 

Pautz v. Wisconsin Dept. of Industry, Labor & Human Relations . . 1022 

Pavilonis v. Massachusetts 805 

Payne; Block v. 815,942 

Payne v. Coughlin 861,1054 

Peacock v. United States 847 

Pearson; Bulloch v. 1048,1086 

Peil v. Sporck 903 

Pelino, Wasserstrom, Chucas & Monteverde, P. C. v. Eisenberg . . 946 

PeUetier v. United States 983 

Perm Central Corp.; Pinney Dock & Transport Co. v. 1033 

Pennington v. Flota Mercante Grancolombiana, S.A 1057 

Pennsylvania; Allen v. 842 

Pennsylvania; Caswell v. 1024 

Pennsylvania; Cortez v. 950 

Pennsylvania v. Delaware Valley Citizens' Council 815,819,1047 

Pennsylvania v. Goldhammer 28 

Pennsylvania; Hancharik v. 819 

Pennsylvania; lannaccio v. 830 

Pennsylvania; Korb v. 831 

Pennsylvania; McMillan v. 815 

Pennsylvania; Mulvey v. 994 

Pennsylvania; Ohle u 1083 

Pennsylvania; Operating Engineers v. 1060 

Pennsylvania; Radogna v. 837 

Pennsylvania; Smalis v. 944,1047 

Pennsylvania; Unangst v. 837 

Pennsylvania; Wivorkoski v. 822 

Pennsylvania; Wood v. 1012 

Pennsylvania Bureau of Correction v. U. S. Marshals Service 34 

Pennzoil Co. u Associated Gas Distributors 847 

Pennzoil Co. v. Public Service Comm'n of W. Va 822 

Penry v. Texas 1073 

Pension Benefit Guaranty Corp. ; Connolly v. 810 

Pension Benefit Guaranty Corp. ; Woodward Sand Co. v. 810 

Penthouse International, Ltd.; Marcone v. 864,1014 

Penza v. New England Medical Center Inc 802 

Pepper u Missouri 830 

Perez v. Illinois 1110 



OF CASES REPORTED xcv 

Page 

Pernianente Medical Group; Fein u 892 

Pernsley v. Harris 965 

Perpignand v. United States 1063 

Perruzza v. Los Angeles County 936 

Pescosolido v. Secretary of Agriculture 1098 

Pesner, In re 1016 

Peters u California 804 

Peterson v. Air Line Pilots Assn 946 

Peterson v. United States 923 

Petrillo v. New Jersey 922 

Petsock; Gay V, 951 

Petsock; Karabin v. 857 

Petsock; Myrick v. 1067 

Petsock; Sakal v. 855 

Pettit; Brady u 845 

Pettit v. United States 1012 

Petty v. New York 1064 

Pevsner; Mueller v. 846 

Pfeil v. Rogers 812 

Pfluger v. Illinois Dept. of Revenue 848 

Pfluger v. Internal Revenue Service 824 

Phelps, In re 917,1043 

Phelps u Duckworth 1011 

Phelps; Hooks v. 1068 

Phelps v. Sovran Bank 858,1015 

Phelps; Williams v. 951 

Philadelphia v. Glassboro 1008 

Philadelphia Electric Co. v. Hercules Inc 980 

Philadelphia Electric Co. v. United States 1105 

Philadelphia Gear Corp.; Federal Deposit Ins. Corp. u 918 

Philadelphia Resins Corp.; Fidelity & Casualty Co, u 1082 

Philbrook; Ansonia Bd. of Ed. v. 1080 

Phillips; Kaplus u 1059 

Phillips v. Lombardi ... 861 

Karowski v. Illinois Community Coll. Dist. 515, Prairie State Coll. 1007 

Pickard v. Ajigelone . . . . 922 

Pierce v. Mine Workers . . 1104 

Pierce County; Brock v. 944,1046,1099 

Pierce County Medical Bureau; Leone v. 1057 

Pietroniro v. Oceanport 1020 

Piggy Bank Stations, Inc. u Commissioner 843 

Pilato; Kwang-Wei Han v. 1056 

Pima County; Moran v. 989 

Pima County Superior Court; Stamps v. 1035 



xcvi TABLE OF CASES REPORTED 

Page 

Pinckard u United States 949 

Pine Hill Civic Club, Inc. v. DeKalb County 892 

Pinkerton v. McCotter 865,990 

Pinney Dock & Transport Co. v. Perm Central Corp 1033 

Pioneer Rural Electric Cooperative, Inc.; Dowty v. 1021 

Pitt u New York 922 

Pittman v. Black 982 

Pitts u Lockhart 982 

Pittsburgh; Smith v. 950 

Pittsburgh & Lake Erie R. Co. v. Humphries 863 

Pittsburgh Terminal Corp. v. Baltimore & Ohio R. Co 919 

P. J. Video, Inc.; New York v. 918 

Placer Savings & Loan Assn.; Frazier v. 1035 

Plaintiff Class Reps., Corn Deriv. Antitr. Litig.; Koerner & Co. v. 1057 

Pleasant Grove City Corp.; Nelson v. 936 

Pleasant View Elementary School PTA v. Group I Defendants 1021 

Plummer v. Aman 1058 

Poff; Amend v. 849 

Pointer v. Ohio 908 

Poland v. Arizona 816,943 

Poll v. Mazurkiewicz 998 

Polo Fashions, Inc. v. Stock Buyers International, Inc 1018 

Pompano Beach u Capalbo 824,1000 

Poole v. United States 1067 

Poquiz t;. Department of Transportation 952 

Port Authority of N. Y.; Lewis v. 944 

Porter <v. O'Farrell 825 

Porter Co. ; Oman v. 970 

Posadas de Puerto Rico Assoc. v. Tourism Co. of P. R. 917,1031,1046,1079 

Poss; Moreland v. 807 

Postal Workers; Jones v. 1003 

Postal Workers v. U. S. Postal Service 1055 

Postmaster General; Burden v. 1012 

Potomac Hospital Corp.; Dillon v. 971 

Potter v. Murray City 849 

Powell u United States 981 

Poyner v. Virginia 865,888 

Pratt; National Distillers & Chemical Corp. v. 849 

Praylow v. Martin 1009 

Preferred Communications, Inc.; Los Angeles v. . . . 979,1048,1080,1099 

Prenzler u Dean Forwarding Co 990 

Prenzler v. Reynolds 804 

Presbytery of Beaver-Butler v. Middlesex Presbyterian Church . 887 

President of United States; Arnold v. 835 



TABLE OF CASES EEPORTED xcvu 

Page 

President of United States; Government Employees v. 1001 

President of United States; Raine v. 853 

Press-Enterprise Co. v. Superior Court of Cal., Riverside Cty. 899,1017 

Pressley v. Florida 982 

Preston u Texas 982 

Preston Carroll Co. v. Morrison Assurance Co 1060 

Preuit & Mauldin v. Jones 1105 

Prevatte v. Gibson 918 

Prewitt v. United States 952 

Prewitt v. U, S. Postal Service 813 

Price v. McCotter 1063 

Price v. Whitmer 828 

Prieber; Vizbaras v. 1101 

Prill; Meyers Industries, Inc. v. 948,971 

Prince v. McCotter 1012 

Prince Mfg. , Inc.; Lombard's Inc. v. 1082 

Prisoner Review Bd.; Walker v. 1065 

Pritchard u United States 1085 

Program Engineering, Inc. v. California Jockey Club 1007 

Progressive Casualty Ins. Co. ; Awrey v. 920 

Provens v. Morris 865 

Provenzano v. United States 949 

Prudential-Bache Securities; Zerman v. 845,1026 

Prudential-Bache Securities Inc. v. Angelastro 935 

Prudential Federal Savings & Loan Assn. v. EEOC 946 

Prudential Lines, Inc.; Sklut Hide & Furs V. 824 

Pruessner v. Benton 1033 

Pruitt u United States 1084 

PSFS Savings Bank, FSB v. Vinson 815 

Public Agencies Opposed to Social Security Entrapment; Heckler v. 1004 

Public Employees v. Commercial Property Services, Inc 850 

Public Service Comrn'n of Ind., Inc. v. ICC 909 

Public Service Cornm'n of Md. v. Chesapeake & Potomac Tel. Co. 942 

Public Service Comrn'n of W. Va.; Pennzoil Co. v. 822 

Public Service Co. of Colo. v. FERC 1081 

Public Utilities Comm'n of Ohio v. FCC 809,1002 

Puerto Rico Marine Management; Insurance Co. of North America v. 1102 

Pugh v. Florida 847 

Pursue Energy Corp. v. Berry 828 

Quan Young v. Immigration and Naturalization Service 996 

Quick v. California . 823 

Quiller v. Barclays American/Credit, Inc 1031 

Quiller; Barclays American/Credit, Inc. u 1031 

Quinault Indian Nation v. Washington 1100 



xcvm TABLE OF CASES REPORTED 

Page 

Quinn v. United States 817 

Quinn; United States v. 900 

Quivira Mining Co. v. Environmental Protection Agency 1055 

R. v. Florida 1011 

Rabon v. Bryan County Bd. of Ed 855 

Rader v. Wisconsin Bd. of Attorneys Professional Responsibility . 820 

Radio Corp. of America; Howard v. 907 

Radio Station WRMC; Pacella v. 844 

Radogna v. Pennsylvania 837 

Ragin v. United States 839 

Railway Labor Executives' Assn.; Dole v. 1099 

Raine v. Reagan 853 

Raines; Boag v. 1085 

Ramie v. Hedwig Village 1062 

Ramirez v. California 1043 

Ramsey v. United States 1082 

Randall v. Kelleher 840 

Randall v. Lof tsgaarden 978 

Randell v. United States 1008 

Randies v. United States 994 

Raphan v. United States 843 

Rapides Parish School Bd. ; Hammond v. 829 

Raske v. Jorandby 802 

Raskiewicz u New Boston 845 

Raspaldo v. Carver 853 

Rasullah v. Henderson 841 

Ratcliff, In re 814 

Ratepayers Fight Back v. Middle South Energy, Inc 1102 

Ratner; Glenwood T.V., Inc. v. 916 

Ratner v. Superior Court of Cal. , San Bernardino County 834 

Rayburn Dam Electric Cooperative v. United States 890 

Rayl; Wilson v. 831 

Rayner v. United States 851 

Razzano v. Dunlop Tire & Rubber Co 948 

Reading Co. u Schweitzer 864 

Reagan; Arnold v. 835 

Reagan; Government Employees v. 1001 

Reagan; Raine v. 853 

Reagan Administration; Boykin v. 921 

Red Bluff; Caylor v. 1037 

Redco Corp. v. CBS, Inc 843 

Reddick v. Connecticut 1067 

Redic v. Schwartz . 920 

Reed; Burton u 949,1077 



TABLE OF CASES EEPOETED xcix 

Page 

Reed v. Campbell 1018 

Reed; Ivy v. 1067 

Reed v. Oregon Workers' Compensation Bd 842 

Reed v. Terrell 946 

Reed v. United States 836 

Reed v. Wainwright 950 

Reehlman v. McNamara 1032 

Rees; Buchanan v. 1010 

Rees; Kirk u 838 

Rees; Wilson v. 944 

Reeves i>. Bowen 1064 

Reeves -y. United States 834 

Regents of Univ. of Mich. v. Ewing 214,810,1017 

Reichenbach; Lassiter-Geers v. 1019 

Reid v. Gholson 824,1014 

Reid v. United States 1104 

Reliance Ins. Co.; Hatch v. 1021,1048 

Reliance Universal, Inc. ; EWP Corp. v. 843 

Remigio v. United States 1009 

Remmenga v. California Coastal Cornm'n 915,1027 

Republican Party of Conn.; Tashjian v. 1049 

Republican Party of Haw. v. Mink 1301 

Retina Consultants, P. C.; Eoussos u 803,895 

Revels v. United States 908 

Rex; Johnson v. 967 

Reyes v. United States 857 

Reynolds v. Florida 980 

Reynolds; Prenzler v. 804 

Reynolds Metals Co. ; Ad Hoc Committee for Akwesasne Rights v. 1021 

Rhode Island; Griffin v. 845 

Rhode Island; Hughes v. 1009 

Rhode Island; Marrapese -v. 921 

Rhodes v. Board of Ed. of Chama Valley Independent School Dist. 802 

Rhodes v. Department of Interior 1103 

Rice; Moore u 983 

Rice; Rook v. 1112 

Richards v. Department of Navy 833 

Richards v. New York 1066 

Richardson-Merrell Inc. v. Roller 808 

Richardson Securities of Canada; Schubert v. 827 

Richmond County Hospital Authority; Wolf v. 826 

Rickus -y United States 921 

Ridley u Goldman 1011 

Righetti; Johnson v 828 



c TABLE OF CASES REPORTED 

Page 

Riley; Michelle Marie W. u 1043 

Ringsby Truck Lines, Inc. u Trucking Employers, Inc 1006 

Risley; Austad v. 856 

Risley; Hart v. 1013 

Rison; Darwin v. 1062 

Rispoli v. United States 1069 

Rivera; Atkins v. 1018 

Rivera; Riverside v. 917 

Riverside v. Rivera 917 

Riverside Bayview Homes, Inc.; United States v. 121 

Roa u Lodi Medical Group, Inc 990 

Roach v. Aiken 1039 

Roach v. Martin 865,1014 

Roach v. United States 835 

Roanoke Redevelopment and Housing Authority; Wright v. 1081 

Roberson; Gentsch v. 1065 

Roberts v. Burlington Industries, Inc 978 

Roberts; Farley v. 1005 

Roberts v. Rutgers State Univ. of N. J 952 

Roberts v. Simpson 946,1077 

Roberts Enterprises, Inc. v. Secretary of Transportation of Kan. . . 915 

Roberts & Schaefer Co.; Lake Coal Co. v. 120 

Robinson; Ariyoshi u 1018 

Robinson v. Cooke 840,1015 

Robinson u Delaware 921 

Robinson v. Engle 842 

Robinson v. United States 851,1032,1103 

Rock v. Zinn 1001 

Rockefeller; Wilson u 859 

Rockefeller's Estate v. Commissioner 1037 

Rockford Map Publishers, Inc.; Directory Service Co. of Colo. v. . . 1061 

Rock Island Arsenal Dept. of Army; Steines v. 822 

Rockview State Correctional Institution; Scott u 1063 

Rockwell International; Williams v. 857 

Rodman, In re 1049 

Rodman v. Continental Ins. Cos 804 

Rodman v. McMackin 1009 

Rodriguez u Hollahan 1035 

Roe v. United States 994 

Roeder v. Texas 988 

Roehler v. California 1021 

Rogers v. Ohio 1002 

Rogers; Pfeil v. 812 

R. O. Givens Signs, Inc. v. Nags Head 826 



TABLE OF CASES REPORTED Cl 

Page 

Kojas-Contreras; United States v. 231 

Bolleston n Sea Island Properties, Inc 823 

Eol Mfg. Co. u Nickson Industries, Inc 843 

Eornan v. Abrams 860 

Roman; Abrams v. 864 

Romano, In re 1017 

Eorner v. California 1035 

Ronwin v. Holohan 864 

Rook v. Rice 1112 

Rosberg v. Goeres 861 

Rose v. Clark 816,1047 

Rose; Lutjeharms v. 817,1014 

Rose v. United States 856 

Roseberry v. Shearson American Express, Inc 1026 

Rosetti; Avondale Shipyards, Inc. v. 820 

Ross v. Bowker 851 

Ross; Florida v. 898,945 

Ross v. Mayfield 835 

Ross v, Missouri 1066 

Ross v. United States 1022 

Rosser-El v. United States 10O9 

Rostad; On-Deck, Inc. u 10O6 

Roth, In re 896 

Roth; Sanchez v. 982 

Rothman v. New York State Dept. of Transportation 1032 

Rothschild v. U. S. Supreme Court 997 

Rouse, In re 807 

Roussos v. Retina Consultants, P. C 803,895 

Rovetuso v. United States 1076 

Rowan Cos.; Transco Exploration Co. v. 822 

Royce International Broadcasting Co. v. FCC 995 

Royse v. United States 1043 

Royster v. United States 1064 

Rubin v. Board of Governors of State Colleges & Univs 1104 

Rubin v. Western 111. Univ. 11O4 

Ruby D. United States 1101 

Rucker v. St. Louis 804,805,1015 

Russell v. United States 10O8 

Rustin v. District of Columbia 946 

Rutgers State Univ. of N. J.; Roberts v. 952 

Ruth v. Texas 829 

Rutter v. Commissioner 848 

Ryan; England v. 952 

Ryan; Owens v. 1064 



en TABLE OF CASES REPORTED 

Page 

Ryan; Trotman u 862 

Sabiston, In re 977 

Sac & Fox Tribe u Apex Construction Co 850 

Sackett-Chicago, Inc. v. Midgett 909 

Sacramento Municipal Utility Dist.; Grason Electric Co. v. 1103 

Sade v. California 994 

Saffels; Weser v. 983 

Saied; Abbitt u 997 

Sailor u New York 982 

St. Amand v. Jones 1065 

St. Bernard v. United States 1070 

St. Claire, In re 1100 

St. James Hospital; Heckler v. 902 

St. Joseph's Hill Infirmary, Inc. u Pacific Care Center, Inc 801 

St. Joseph's Hospital; New York State Nurses Assn. v. 827 

St. Louis; Rucker u 804,805,1015 

Sakal u Petsock 855 

Sakamoto v. Duty Free Shoppers, Ltd 993 

Sakellar v. Lockheed Missiles & Space Co 1084 

Salisbury v. James River Corp 1061 

Salman u United States Supreme Court 853 

Sam Rayburn Dam Electric Cooperative v. United States 890 

Samuel Weiser, Inc.; Motta v. 1033 

San Antonio; San Antonio Independent School Dist. v. 948 

San Antonio Independent School Dist. v. San Antonio 948 

Sanchez v. Roth 982 

Sanchez-Berridi, In re 899 

Sanders v. Junior College Dist. of Metropolitan Kansas City .... 922 

Sanders v. Mississippi State Bar Assn 844 

Sanford v. Bradley 906 

Sarasota County Public Hospital Bd.; El Shahawy v. 829,1014 

Sargent; Burton v. 1011,1112 

Sargis; Mihal v. 803,1015 

Sarracen u Appleby 845 

Satterfield u Huebner 818 

Saugus i>. Voutour 1100 

Saville v. Westinghouse Electric Corp 911 

Savoca v. United States 852 

Sawyer u Fulcomer 1063 

Sawyer v. United States 1024 

Saxner; Cleavinger v. ... 193 

Scaglione v. Communications Workers 921 

Scanlan v. Alabama 1035 

Scarnati v. United States 1056 



TABLE OF CASES REPORTED cm 

Page 

ScheUer v. American Medical International, Inc 947 

Scheppf v. King 1036 

Schiavone v. Fortune 814 

Schiavone v. Time, Inc 814 

Schiavone v. United States 1020 

Schilling v. Telegraph Savings & Loan Assn. of Chicago 1069 

Schlitz Brewing Co. ; Transcon Lines, Inc. v. 848 

Schmid, In re 993,1077 

Schmidt; Smallwood v. 853 

Schoenborn v. Boeing Co 1082 

School Bd. of Pinellas County v. Manecke 1062 

Schor; Commodity Futures Trading Comm'n v. 1018 

Schor v. ContiCommodity Services, Inc 1083 

Schor; ContiCommodity Services, Inc. v. 1018 

Schramm u Cudahy 852 

Schubert v. Richardson Securities of Canada 827 

Schuchman V. United States 807,1079 

Schwab; Galuszka u 803 

Schwartz; Redic v. 920 

Schwarzer; Green u 921,1027 

Schwegmann Giant Supermarkets, Inc. ; Lizzana v. 854 

Schweitzer; Reading Co. v. 864 

Schwender u Department of Labor 1054 

Scott v. Denton 950 

Scott v. Rockview State Correctional Institution . . . 1O63 

Scott v. United States 863 

Scully; Cantone v. ... . . 836 

Scully; Griffin v. 905 

Scully; Smith v. . . 895 

Seabrook; Jureczki v. . . . ... . 941 

Sea Island Properties, Inc.; Rolleston v. . . . 823 

Sea-Land Service, Inc.; Negrito Comercial, S.A. v 1033 

Searcy v. Greer .... . . . 996 

Sears; Stewart v. . . . . . . 1057 

Sears, Roebuck & Co. ; Otis v. .... . 854 

Sears, Roebuck & Co.; Wilsons ... . 1059 

Seaton v. McCotter .... . . 836 

Seattle; Palmer v. 828 

Seaver v. United States . 1101 

Secretary of Agriculture; Bohemia, Inc. v. . . 919 

Secretary of Agriculture v. Castillo .... 994 

Secretary of Agriculture; North Side Lumber Co, v. 931 

Secretary of Agriculture v. Payne 815,942 

Secretary of Agriculture; Pescosolido v 1O98 



Civ TABLE OF CASES REPORTED 

Page 

Secretary of Air Force; Gfflis u 908 

Secretary of Army; Fritz v. 832 

Secretary of Army; Pacyna v. 1078 

Secretary of Army; Pappanikolaou v. 949 

Secretary of Commerce u American Cetacean Society 1053 

Secretary of HHS v. Abington Memorial Hospital 863 

Secretary of HHS v. American Hospital Assn 810 

Secretary of HHS v. Aurora Community Hospital 863 

Secretary of HHS; Ford v. 869 

Secretary of HHS; Georgia Dept. of Medical Assistance v. 1059 

Secretary of HHS; Humana Inc. v. . . .' 1055 

Secretary of HHS v. Humana of Aurora, Inc 863 

Secretary of HHS; Jensen v. 945 

Secretary of HHS; Kolman v. 997 

Secretary of HHS u Michigan Academy of Family Physicians 815 

Secretary of HHS v. New York City 815 

Secretary of HHS v. Owens 899,1046 

Secretary of HHS v. Pub. Agencies Opposed to Social Sec. Entrap. 1004 

Secretary of HHS; Reeves u 1064 

Secretary of HHS u St. James Hospital 902 

Secretary of HHS; Suarez v. 844,1097 

Secretary of HHS; Triplett v. 1104 

Secretary of HHS; Van Horn v. 854,1015 

Secretary of HHS; Weisbraut u 852 

Secretary of Interior; Canyoneers, Inc. v. 846 

Secretary of Interior; Gabriel Energy Corp. v. 900 

Secretary of Interior; Grand Canyon Trail Guides v. 846 

Secretary of Interior v. Irving 1049 

Secretary of Interior; Montana v. 919 

Secretary of Interior; Stearns Co. v. 900 

Secretary of Labor; Automobile Workers v. 825,900 

Secretary of Labor; DialAmerica Marketing, Inc. v. 919 

Secretary of Labor; Master Printers of America v. 818 

Secretary of Labor v. Pierce County 944,1046,1099 

Secretary of Labor v. Transportation Union 3 

Secretary of State; Flynn v. 830 

Secretary of State; Ukrainian-American Bar Assn. v. 976 

Secretary of State of Conn, u Republican Party of Conn 1049 

Secretary of State of Ga.; Geison v. 1066 

Secretary of State of Me.; Maines v. 947 

Secretary of State of Wash, u Socialist Workers Party 1049 

Secretary of Transportation; Belmont v. 1055 

Secretary of Transportation; Hoover v. 902 

Secretary of Transportation v. Railway Labor Executives' Assn. . . 1099 



TABLE OF CASES REPORTED cv 

Page 

Secretary of Transportation of Kan.; Roberts Enterprises, Inc. v. . 915 

Secretary of Transportation of Pa.; National Freight, Inc. v. 902 

Securities and Exchange Cornm'n; WACO Financial, Inc. u 818 

Securities Industry Assn. u Comptroller of Currency 1054 

Seibold v. URN-Rohn Co 920,1038 

Self v. Stephenson 858 

Sellner v. Maryland 1066 

Semicole Allied Van Lines; Muhammad v. 1103 

Sendak; Mother Goose Nursery Schools, Inc. v. 1102 

Senft v. United States 945 

Seritis; Hotel & Restaurant Employees v. 1060 

Sestric v. Clark 1086 

Shabazz v. McCotter 979 

Shabazz v. Oklahoma 1068 

Shafer; Cunningham v. 831,997 

Shaffer-Corona v. District of Columbia Teachers Fed. Credit Union 1065 

Shahryar u Martin 912 

Shanghai Power Co. v. United States 909 

Sharon Steel Corp. v. Fairmont 993,1098 

Sharp; Almon v. 1010 

Sharp-Eye Enterprises u Golden West Broadcasters, Inc 817 

Shatterproof Glass Corp.; Libbey-Owens-Ford Co. v. 976 

Shaw v. Hunt 1012 

Shaw; Library of Congress -. 815,992 

Shaw u Woodard 922 

Shearson American Express, Inc.; Aspero v. 1026 

Shearson American Express, Inc.; Roseberry v. 1026 

Sheet Metal Workers v. EEOC 815,1045 

Sheffer v. Mallonn 1083 

Sheffield u North Carolina State Bar 981 

Shelor v. Kentucky 919 

Shelton v. Washington 920 

Shelton v. Winsor 846 

Sheppard v. Erman 835 

Shirani; Mahdavi v. 950 

Shockley u Cox Enterprises, Inc 1102 

Shorter v. Drury 827 

Showers; Muth v. 1008 

Shuba v. Austintown Bd. of Ed 1033 

Shultz; Flynn v. 830 

Shultz; Ukrainian- American Bar Assn., Inc. v. 976 

Sibaja v. Dow Chemical Co 948 

Siegfried, In re 941, 1044 

Sielaif v. Carrier 898 



cvi TABLE OF CASES REPORTED 

Page 

Sielaff; Inge u 833 

Sielaff; Smith u 918,993,1031 

Sielaff; Turner v. 1003 

Sielaff; Williams v. 906 

Sierra v. United States 981 

SignAd, Inc. ; Sugar Land v. 822 

Silas v. Winans 1022 

Silent Hoist & Crane Co. v. Director, Division of Taxation 995 

Sirncox; Hall v. 1006 

Simmons v. Camden County Bd. of Ed 981 

Simmons v. Interstate Commerce Comm'n 1055 

Simon u United States 863,1013 

Simone v. G. N. A. C. Corp 820 

Simone v. Golden Nugget Hotel & Casino 820 

Simons v. Dietz 838 

Simons v. Montgomery County Dept. of Parole and Probations .... 979 

Simons v. Montgomery County Dept. of Police 1054 

Simor; Cochrane v. 847 

Simplot v. Strobl 1006 

Simpson; Roberts v. 946,1077 

Sims v. Babcock & Wilcox Co 836 

Sims v. Cooke 849 

Sinclair International v. Maxfield 1057 

Siripan v. United States 1086 

Sisson u Helms 846 

Skaggs v. United States 852 

Skinner; Mullen v. 980 

Skipper u South Carolina 900,942 

Sklut Hide & Furs v. Prudential Lines, Inc 824 

Sloan v. Hicks 1006,1111 

Slone, In re 807 

Smalis v. Pennsylvania 944, 1047 

Smallwood v. Schmidt 853 

Smith, In re 1030 

Smith; Betkau 860,1015 

Smith; Billings v. 859 

Smith; Burton v 997, 1077 

Smith; Cleveland Heights v. 1056 

Smith; Cushing-Gale v. 1012 

Smith v. DeRobertis 838 

Smith; Foster u 861,990 

Smith v. Francis 925,1026 

Smith v. Golden West Broadcasters, Inc 817 

Smith v. Illinois 949 



TABLE OF CASES REPORTED cvn 

Page 

Smith; Jones v. 1073 

Smith v. Maryland 854 

Smith v. Maschner 996 

Smith v. Montana 1073 

Smith; Mullady u 949 

Smith v. Nevada 1104 

Smith v. New Jersey 820 

Smith v. North Carolina 1026 

Smith v. Omaha 1068 

Smith v. Pittsburgh 950 

Smith v. Scully 895 

Smith v. Sielaff 918,993,1031 

Smith v. Thigpen 944 

Smith v. United States 830,1098 

Smith; Welch v. 1086 

Smith Barney, Harris Upham & Co.; Chapman v. 850 

Smith-Bey, In re 814,978 

Smith International, Inc. v. Hughes Tool Co 827 

Smith's Estate v. United States 1056 

Snaer v. Guam 828 

Snowden v. United States 1011 

Snyder; Fells v. 922 

Sobin t). District of Columbia 860 

Socialist Workers Party; Munro v. . . 1049 

Soft Drink Workers v. Monarch Long Beach Corp 1020 

Soft Drink Workers; Monarch Long Beach Corp. v. 1020 

Solern; Cody v. 833 

Sonmier v. Suffolk County 852,1000 

Sonnrnerstedt v. United States ... . . . 851 

Sorensen v. Fitzgerald 918,1014 

Sotelo v. United States 806 

Soto v. United States 832 

South v. South Carolina . 888 

South Carolina; Butler v. . 1094 

South Carolina; Clark -v. . ... . . 998 

South Carolina; Damon v .... . 865,1015 

South Carolina; Dunbar v. ... . 1063 

South Carolina; Felder v. . . . . . 1066 

South Carolina; Green v. . . . . . . 921 

South Carolina; Lanier u . . 25 

South Carolina; Skipper v. . . ... 900,942 

South Carolina; South v. . . . . . 888 

South Dakota v. Nebraska ... ... . 941 

South Dakota; Oglala Sioux Tribe v. .... 1102 



cvm TABLE OF CASES REPORTED 

Page 

Southeast Toyota Distributors, Inc.; Fowler v. 951,1038 

Southern Bell Telephone & Telegraph Co.; Kearson v. 1065 

Southern Pacific Transportation Co.; Flores v. 828 

Southern Pacific Transportation Co.; Garcia v. 848 

Southern R. Co.; Whitehead v. 1083 

Southern R. Co.; Woodrum v. 821 

Southland Corp. v. United States 825 

South Park Independent School Dist.; Day u 1101 

Southwest Chem. Services v. Superior Ct. of Maricopa Cty 847 

Sovran Bank; Phelps v. 858,1015 

Sowells v. Harmon 823 

Span v. DeLaine 835,990 

Spaniol; Carter v. 998 

Spanish Lake Assn.; Carson v. 829 

Spann v. Wainwright 830 

Spantax, S.A.; De la Lastra Petrire v. 846 

Sparrow v. Devine 949,1077 

Sparrow v. Hajimaholis 1006,1111 

Spaulding v. Holland 998 

Spellman v. Integon General Ins. Corp 1010,1097 

Spendlove v. Anchorage Mun. Zoning Bd. of Examiners & App. . . . 895 

Sperry Rand Corp. ; Ambrose v. 947 

Spicer v. United States 924 

Spiegel; Mann v. 935 

Spiess v. United States 1004 

Spigner; Aleem u 832 

Spika v. Lombard 1056 

Spivey v. United States 923 

Sporck; Peil v. 903 

Springfield; DeFazio v. 1055 

Springston v. Pacific Intermountain Express Co 1023 

Spruytte; Walters v. 811,1054 

Square D Co. u Niagara Frontier Tariff Bureau, Inc 815,1017,1080 

Srubar v. Department of Treasury 855,1000 

Stachura; Memphis Community School Dist. v. 918 

Stafford u Oklahoma 865 

Stagner; Anderson v. 857 

Stamps v. Pima County Superior Court 1035 

Standard Oil Co. of CaL; Northern Oil Co. v. 821 

Standford v. United States 1067 

Stanley v. Aubert 981 

Stano u Florida 1093 

Staples v. United States 908 

State. See name of State. 



TABLE OF CASES REPORTED CDC 

Page 

State Bar of Cal.; Chapman v. 848 

State Bar of Tex.; Daves v. 1043 

State Bd. of Land Comm'rs of Colo.; Occidental Oil Shale, Inc. v. . . 817 

State, County & Municipal Employees v. United States 1022 

State Ins. Fund; Methodist Hospital of Brooklyn *v. 801 

State Oil & Gas Bd.; Transcontinental Gas Pipe Line v. . . . 897,1030,1045 

State Oil & Gas Bd. of Miss.; Transcontinental Gas Pipe Line v. . . . 409 

State Savings & Loan Assn. v. Federal Home Loan Bank Bd 1057 

Stauffer v. United States 1063 

Stearns Co. v. Hodel 900 

Steelworkers; Frye v. 1007 

Steelworkers; Graczyk v. 970 

Steines v. Rock Island Arsenal Dept. of Army 822 

Stelly -v. Commissioner 851 

Stephenson; Self v. 858 

Sterley v. United States 1013 

Stetz v. Grant 1033 

Stevas; Borntrager u 1008 

Stevens v. California 1059 

Stevens v. Wisconsin 852 

Stevens & Co.; Lex Tex Ltd. v 822 

Steves Sash & Door Co.; Uviedo v. 1054 

Stewart v. Sears 1057 

Stewart v. Texas 866 

Stewart v. United States 1103 

Stewart v. Wisconsin 906 

Stierheim; Liphete D. 1069 

Stivers; Hallstrom v. 902 

Stock, In re 1002 

Stock; Massachusetts Hospital School v. 844 

Stock Buyers International, Inc.; Polo Fashions, Inc. v. 1018 

Stocki v. Illinois 952 

Stone v> Merit Systems Protection Bd 1033 

Stop-N-Go, Inc. v. Bradfield 805 

Stouts; Burton v. 856 

Strader v. Allsbrook 834 

Strader v. Keith 833 

Streeter v. United States 1064 

Streich v. United States 860,1000 

Strobl; Siinplot v. . . 1006 

Strode v. Gregory 803,948 

Sturm, In re 982 

Sturm v. California 906, 1009 

Suarez v. Heckler 844, 1097 



ex TABLE OF CASES REPORTED 

Page 

Suburban Ford, Inc. v. Ford Motor Credit Co 995 

Suffolk County; Sommer v. 852,1000 

Sugar Land v. SignAd, Inc 822 

Sui; Landi v. 846 

Sunnyside Valley Irrigation Dist. v. United States 1032 

Sun Oil Co. v. Wortman 806 

Superintendent, Arthur Kill Correctional Facility; Autorino u .... 849 

Superintendent of Capron Correctional Unit; Burnley v. 1011 

Superintendent of penal or correctional institution. See also name 
or title of superintendent. 

Superior Court of Ariz., Pima Cty.; Val/Del, Inc. v. 920 

Superior Court of Cal., Riverside Cty.; Press-Enterprise Co. v. 899,1017 

Superior Court of Cal., San Bernardino Cty.; Ratner v. 834 

Superior Court of Cal., San Diego Cty.; John Holman & Sons v. . . . 1082 

Superior Court of Contra Costa Cty.; Valentino v. 837 

Superior Court of Maricopa Cty.; Southwest Chem. Services, Inc. v. 847 

Supreme Court of Appeals of W. Va.; WestfaU v. 1065 

Supreme Court of Ohio; Johns v. 824 

Supreme Court of Va.; Goldfarb v. 1086 

Surdut, In re 896 

Sutton; Connecticut v. 1073 

Swaim v. United States 825 

Swain v. United States 908 

Swan v. Texas 1102 

Sweater Bee by Banff, Ltd. v. Manhattan Industries, Inc 819 

Sweeney v. United States 908 

Swicegood v. United States 1012 

Syracuse Univ.; McLaurin v. 1011 

Systems Architects, Inc. v. United States 847 

Szombathy; Dano v. 950,1077 

Tafoya v. United States 921 

TaUentire; Offshore Logistics, Inc. v. 816,1003,1017 

Tamayo v. United States 839 

Tashjian v. Republican Party of Conn 1049 

Tate v. Cooke 842 

Taylor v. Automobile Workers 1081 

Taylor v. Best 982 

Taylor v. Blackwell 847 

Taylor v. Louisiana 1022 

Taylor; Maine v. 943,1047 

Taylor v. O'Keefe 888 

Taylor v. United States 821,829 

Teachers v. Hudson 810 

Teamsters; Aragon v. 902 



TABLE OF CASES REPORTED cxi 

Page 

Teamsters; Bippus v. 1007 

Teamsters; Knox v. 857 

Technograph, Inc. v. General Motors Corp 819 

Tectonics, Inc.; Collins Co. v. 848 

Telegraph Savings & Loan Assn. of Chicago; Schilling v. 1069 

Templeman u Chris Craft Corp 1021 

Tenneco West, Inc. u Marathon Oil Co 845 

Tennessee; Austin v. 1073 

Tennessee; Huskey u 936 

Tennessee; McDonald v. 951 

Tennessee Dept. of Employment Security; Johnson v. 826 

Terrell; Reed v. 946 

Territory. See name of Territory. 

Terry v. Alabama 826 

Terry; Musicant v. 856 

Texaco Inc.; Farm Stores, Inc. v. 1039 

Texas; Bonham v. 865 

Texas; Cannon v. 1110 

Texas v. Chambers 864 

Texas v. Colorado 1017 

Texas; Corpus Christi People's Baptist Church, Inc. v. 801 

Texas; DeGarmo v. 973 

Texas v. Department of Energy 1008 

Texas; Duff-Smith v. 865 

Texas; East v. 1000 

Texas; Gamez v. 833 

Texas; Guzmon v. . 1015 

Texas; Hurwitz v. 1102 

Texas; Johnson v. . 865 

Texas; Masters v. 853 

Texas v. McCullough 897 

Texas; Moore v. 1113 

Texas; Neal v. . 818 

Texas; Nethery v. . . 1110 

Texas; Nichols v. . ... . 1034 

Texas; Penry v. . . . . 1073 

Texas; Preston v. 982 

Texas; Roeder v. . . . .... 988 

Texas; Ruth v. ... . ... 829 

Texas; Stewart v. 866 

Texas; Swan u . . ... ... . . . . 1102 

Texas; Thompson v. . ... ... ... 865 

Texas v. United States . . . 843,1078 

Texas; Wiley v. . 944 



cxn TABLE OF CASES REPORTED 

Page 

Texas; Williams v. 1110 

Texas State Bd. of Dental Examiners; Blankfield v. 980 

T. G. & Y. Stores, Inc. v. Lusby 818,1014 

Thacker v. Atiyeh 854 

Thanh, In re 1100 

Theatrical Stage Employees . Department of Labor 901 

Thigpen; Smith v. 944 

Thoele v. Chicago 1056 

Thomas v. Arkansas 821 

Thomas v. Am 140,1111 

Thomas v. General Services Administration 843 

Thomas; Kemp v. 1048 

Thomas v. McCotter 935,1015 

Thomas u Missouri 842 

Thomas v. United States 873,980,1066 

Thomas; Wainwright v. 864 

Thomas v. Ylst 859 

Thompson v. First National Bank & Trust Co 895,1027 

Thompson; Merrell Dow Pharmaceuticals Inc. v. 1004 

Thompson v. Texas 865 

Thompson v. United States 828 

Thomson v. American Lutheran Church, Inc 802 

Thomson McKinnon Securities, Inc.; Dearie v. 903 

Thornburg v. Gingles 808 

Thornburg; Nantahala Power & Light Co. v. 1018 

Thornburgh u American College of Obstetricians & Gynecologists . 809 

Thome v. West Virginia 996 

Thornton v. Holland 1083 

Thrasher v. Illinois 850 

Three Affiliated Tribes of Ft. Berthold v. Wold Engineering . . . 900,1046 

324 Liquor Corp. v. McLaughlin 811 

Tierney v. United States 843 

Tiffany Industries, Inc. v. Alexander Grant & Co 1058 

Tillis v. Davis 837 

Timberlake v. United States 1101 

Time, Inc.; Schiavone v. 814 

Times-World Corp.; Adkins v. 1109 

Tinker-Bey v. District of Columbia 1065 

Toland v. Arkansas 945 

Toler v. United States 829 

Tomczak v. Chicago 946 

Toomey v. United States 1069 

Torres v. Little Flower's Children's Services 864 

Toshiba America, Inc.; Copy-Data Systems, Inc. v. 825 



TABLE OF CASES REPORTED cxni 

Page 

Tourism Co. of P. R.; Condado Holiday Inn v. 917,1031,1046,1079 

Tourism Co. of P. R.; Posadas de P. R. Associates v. 917,1031,1046,1079 

Towles u United States 935 

Town. See name of town. 

Tracey, In re 899,1111 

Tracy v. Commissioner 866 

Trailer Train Co.; Bair v. 1021 

Transanierica Delaval Inc.; East River S.S. Corp. v. 814,1046 

Transco Exploration Co. v. Rowan Cos 822 

Transcon Lines, Inc. v. Joseph Schlitz Brewing Co 848 

Transcontinental Gas Pipe Line^. State Oil & Gas Bd. 409,897,1030,1045 

Transgo, Inc.; Ajac Transmission Parts Corp. v. 1059 

Transportation Union; Brock v. 3 

Transportation Union; Cuyahoga Valley R. Co. v. 3 

Travalino v. Dixon 1043 

Travelers Indemnity Co.; Doran v. 1007 

Travelers Inns of N"orth Wilkesboro, Inc.; Douglas v. 847 

Travelers Ins. Cos.; Community Health Services of Crawford Cty. v. 1056 

Travis v. United States 840 

Treadwell u United States 1064 

Treasury Employees v. O'Connor 909 

Trichell v. United States 1104 

Trident Technical College; George A. Creed & Son, Inc. v. 1060 

Tripati, In re 1048 

Triplett v. Bowen 1104 

Trotman v. Ryan 862 

Truck Drivers v. National Labor Relations Bd 901 

Trucking Employers, Inc. ; Ringsby Truck Lines, Inc. v. 1006 

Tnirnan Chafin Legal Corp.; Blair v. 840 

Truman Chafin Legal Corp.; Blairco, Inc. v. 840 

Trump V. Chu 915 

Truth or Consequences; Hewitt v. 844 

Tsai u Li 826 

Tsuchiya; Woods v. 825 

Tubbs v. McCotter 997 

Tucker v. Hartford Federal Savings & Loan Assn 896,920 

Tucker -v. Hartford National Bank & Trust Co 845 

Tucker -y. Kemp 1001 

Tucker v. United States 1085 

Tudor v. Glaesman 995 

Tufaro u United States 826 

Tulalip Tribes of Wash. t>. Federal Energy Regulatory Comm'n . . 900 

Tulare; Ornsbey v. 842 

Turner; Carson v. 944 



cxrv TABLE OF CASES REPORTED 

Page 

Turner v. C F & I Steel Corp 1058 

Turner v. Morris 906 

Turner v. North Carolina Dept. of Human Resources 1011,1111 

Turner v. Sielaff 1003 

Tuscaloosa News, Inc.; Craig v. 841 

Two-R Drilling Co.; Martin v. 849 

Tyler; James v. 1026 

Typhoon Car Wash, Inc. v. Mobil Oil Corp 981 

Ugarte v. United States Lines, Inc 848 

Ukrainian- American Bar Assn. , Inc. v. Shultz 976 

Unangst u Pennsylvania 837 

Unauthorized Practice Comm., State Bar of Tex.; Cortez v. 980 

Unauthorized Practice Comm. , State Bar of Tex. ; Cortez Agency v. 980 
Union. For labor union, see name of trade. 

Union Carbide Corp.; Karapinka v. 1060 

Union Carbide Corp.; Lundy v. 848 

Union Gap Irrigation Dist. v. United States 1032 

United. For labor union, see name of trade. 

United Artists Communications, Inc. v. United States 945 

United Ky. Bank, Inc. v. George 821 

United Pacific Ins. Co. v. Aniero Concrete Co 1033 

United Parcel Service of America, Inc. ; Goldberg v. 920 

United States. See name of other party. 

U. S. Attorney for Southern Dist. of Ala.; Ernest v. 1016 

United States Automobile Assn.; Boardman v. 980 

U. S. Court of Appeals Judge; Cataldo v. 916 

U. S. Customs Service; Barrett v. 812,984 

U. S. District Court; Humphrey v. 853 

U. S. District Court; McQueen v. 1064 

U. S. District Judge; Day v. 922 

U. S. District Judge; Green v. 921,1027 

U. S. District Judge; Prevatte u 918 

U. S. District Judge; Randall v. 840 

U. S. District Judge; Reehlman v. 1032 

U. S. District Judge; Weser v. 983 

United States ex rel. Martin Steel Constructors; Harvis Const, v. 817 

United States Lines, Inc.; Ugarte v. 848 

U. S. Marshals Service; Pennsylvania Bureau of Correction v. . . . 34 

United States Parcel Service; Daniel v. 1067 

U. S. Parole Comm'n; Hutchings von Ludwitz v. . . . 984 

U. S. Postal Service; Farris v. 907 

U. S. Postal Service; Postal Workers v. 1055 

U. S. Postal Service; Prewitt v. 813 

United States Steel Corp.; McCorstin v. 1008,1097 



TABLE OF CASES REPORTED cxv 

Page 

U. S. Supreme Court; Rothschild v. 997 

U. S. Supreme Court; Salman v. 853 

United States Trust Co. of N. Y.; Bennett v. 1058 

United Van Lines; Dow v. 825,1014 

United Van Lines, Inc. v. Hunter 863,1014 

University of Pittsburgh School of Medicine; Dennie v. 849 

University of Term. v. Elliott 1004 

URN-Rohn Co.; Seibold v. 920,1038 

U. S. Trust Corp. v. Board of Governors, FRS 1098 

UTC/Hamilton Standard Division; Velilla v. 832 

Utz v. United States 1032 

Uviedo v. Steves Sash & Door Co 1054 

Val/Del, Inc. v. Pascua Yaqui Tribe 920 

Val/Del, Inc. v. Superior Court of Ariz., Pima County 920 

Valentino v. Superior Court of Contra Costa County 837 

Van Arsdall; Delaware v. 897,977 

Van Hoff v. Iowa 1034 

Van Horn v. Heckler 854,1015 

Vanover v. Kentucky 953 

Vanterpool v. Hess Oil Virgin Islands Corp 1059 

Van Worrner; Hyde v. 827,992 

Vargas n United States 1069 

Varnes u Forbes 1058 

Vasquez v. Hillery 254 

Vaughn; Carbalan v. 1007 

Veal v. DeRobertis 1082 

Veale v. Veale 1010 

Veatch v. United States 908 

Velilla v. UTC/Hamilton Standard Division 832 

Verdeyen; Haynes v. 1083 

Verdon v. United States 1012 

Vernon v. Maggio 945, 1078 

Veterans Administration; Christian u 826 

Veterans Administration; Groza v. 873 

Vetter, In re 1044 

Vido u United States 1013 

Vigne u United States 861,983 

Vignes v. Virginia ... 1062 

Village. See name of village. 

Village Book & News Store; Arcara u 978 

Villano v. United States 981 

Villanueva v. Oklahoma 901 

Villarreal v United States 904 

Vincent v. United States . 838 



cxvi TABLE OF CASES REPORTED 

Page 

Vinson; Meritor Savings Bank, FSB u 1047 

Vinson; PSFS Savings Bank, FSB v. 815 

Virginia; Duff v. 905 

Virginia; Edmonds v. 975 

Virginia; Poyner v. 865,888 

Virginia; Vignes u 1062 

Vivitar Corp. v. United States 1055 

Vizbaras v. Prieber 1101 

Vogel; Goldblatt v. 952 

Von Ludwitz v. U. S. Parole Comm'n 984 

Von Neumann; United States v. 242 

Voutour; Saugus v. 1100 

W. v. Riley 1043 

WACO Financial, Inc. v. Securities and Exchange Comm'n 818 

Wade v. Crane 1020 

Wade v. Frontier Properties, Inc 837 

Wade v. United States 1048 

Waffenschmidt; Currey v. 1056 

Waffenschmidt v. First National Bank of Mt. Vernon 1056 

W. A. Foote Memorial Hospital, Inc. v. Grubb 946 

Waggoner v. United States 1103 

Wainwright; Adams v. 1073 

Wainwright; Booker u 975 

Wainwright; Brown v. 1084 

Wainwright; Darden v. 899 

Wainwright; Ford v. 1019 

Wainwright; Grace v. 901 

Wainwright v. Greenfield 284,810,897 

Wainwright; Kennedy v. 1112 

Wainwright; McKnight v. 1064 

Wainwright; Reed v. 950 

Wainwright; Spann u 830 

Wainwright v. Thomas 864 

Wainwright; Young v. 859 

Walberg; Israel v. 1013 

Walker, In re 836 

Walker v. Georgia 865,1015 

Walker; Holloway u 1037 

Walker; McLain v. 1061 

Walker; Messerschmitt Bolkow Blohm, GmbH v. 812 

Walker v. Prisoner Review Bd 1065 

Walker v. United States 953 

Walker u Warren 801 

Wallace v. United States 908,1112 



TABLE OF CASES REPORTED cxvn 

Page 

Walnut Properties, Inc.; California v. 903 

Walters, In re 808 

Walters v. Spruytte 811,1054 

Walton, In re 814,1014 

Wandel v. Colorado 1032 

Wansong v. Wansong 1014 

Ward, In re 1031 

Ward v. L & C Marine Transport, Ltd 904 

Ward; Longshoremen v. 1008 

Wardair Canada Inc. v. Florida Dept. of Revenue 943,1002,1079 

Warden. See also name of warden. 

Warden; Bernard v. 1104 

Warden v. Wyrick 1035 

Warden, House of Correction; Kelly v. 853 

Wamick v. Jin Cha 920 

Warren v. Government Employees 1006 

Warren; Walker v, 801 

Warren County Fiscal Court; West v. 1086 

Washington; Brown v. 1058 

Washington; Hooper v. 919 

Washington; Komoto v. 1021 

Washington; Quinault Indian Nation v. 1100 

Washington; Shelton v. 920 

Washington v. United States 994 

Washington Dept. of Services for Blind; Witters v. 481 

Washington Metropolitan Area Transit Authority; Brown v. . . . . 858 

Wasserstrom v. Eisenberg 946 

Watkins, In re 814 

Watson, In re 808,1030 

Way; Freedom Savings & Loan Assn. v. 845 

Webster; Miller v. 858 

Weeks v. Johnson .... 950 

Weempe v. United States 863 

Weide v. United States 822 

Weiner; Haas v. 981 

Weinstein v. Eisenberg 946 

Weisbraut v. Heckler 852 

Weiser, Inc.; Motta v. .... 1033 

Weiss v. United States . . 944 

Welborn; Hanrahan v . . ... ... 1104 

Welch u Ohio. . 907,1010 

Welch v. Smith 1085 

Welcker v. United States . 826 

Wellington v. United States . . 1032 



cxvni TABLE OF CASES REPORTED 

Page 

Wells; Jones u 1102 

Welty; Heggy u 947 

Wendolkowski u United States 996 

Weser v. Saffels 983 

West v. Cain 1066 

West v. Warren County Fiscal Court 1086 

Westbrook v. Arkansas 1006 

West Central Cooperative v. United States 1000 

Western Concrete Structures Co.; Mitsui & Co. (U.S.A.) v. 903 

Western 111. Univ.; Rubin v. 1104 

Western Reserve Oil & Gas Co. v. New 1056 

Western Union International, Inc. v. Amato 1113 

Westfall v. Supreme Court of Appeals of W. Va 1065 

West Gulf Maritime Assn. v. Longshoremen 844 

Westinghouse Electric Corp. ; Saville v. 911 

Westin, Inc. u BLC Ins. Co 844 

West Linn; Betka v. 836,1015 

West Publishing Co.; Beary v. 903 

West Virginia; Clements v. 857 

West Virginia; Thorne v. 996 

Wetherbee, In re 897 

Wettman; Day v. 1035 

Whalen u Dean Steel Erection Co 802 

Whaley, In re 814,990 

Wham v. United States 1105 

Wharton v. Abbeville School Dist 1086 

Wheeler v. Mental Health and Mental Retardation Authority . . . 824 

Wheeler v. United States 1081 

Wheelings v. United States 819 

Whiddon v. United States 835 

Whigham v. New York Telephone 1011 

Whitaker v. Knapp 803 

Whitaker v. New York 830 

White; Burnside v. 1022 

White; Hubbard v. 834 

White v. Minnesota 1057 

White v. United States 983,1101,1103 

White; Zerman v. 895,1077 

Whitehead v. Southern R. Co .... 1083 

Whiting; Kelly v. 1008 

Whitley v. Albers 809 

Whitley v. Bair . . 989 

Whitley v. United States 873 

Whitmer; Price v. 828 



TABLE OF CASES REPORTED cxix 

Page 

Whitt v. Commissioner 1005 

Whittaker Corp. v. Olympic Sports Products, Inc 1060 

Whittlesey v. Maryland 858,1000 

Wicker; Brantner v. 831 

Wickham v. United States 983 

Widell & Sons v. Ellison 1083 

Wiebner v. Fulcomer 852 

Wiggins v. New Mexico 831 

Wigley v. Florida 949 

Wilco Marsh Buggies & Draglines, Inc. v. Kori Corp 902 

Wilentz; Hauptmann v. 1103 

Wiley v. Texas 944 

Wiley v. United States 1054 

Wilhite; Greyhound Lines, Inc. v, ... . 910,1026 

Wilkes-Barre Publishing Co. Pension Trust; Edwards v. 843 

Willardo v. Indiana 1098 

Williams v. Arkansas 844 

Williams v. Caldwell . . 945 

Williams; Daniels v. 327 

Williams v. Delaware . . 824 

Williams v. Illinois . . 836 

Williams v. Kemp .... . 806 

Williams v. Kimmelman . . ... 838 

Williams v. Lockhart . . . .832 

Williams; Mack u . . . 852 

Williams i>. Maggio .... . ... . 1011 

Williams v. Phelps . . . . . . . 951 

Williams v. Rockwell International .... ... . 857 

Williams v. Sielaff . . 906 

Williams v. Texas . . . 1110 

Williams v. United States . 829,838,906,1004,1013 

Williamsport Area School Dist.; Bender v. . 942,1002 

Willis v. United States . 849 

Wilmshurst v. New Motor Vehicle Bd. 936 

Wilson v. Barnes , 907 

Wilson; Burton v. . . 997,1077 

Wilson v. Louisiana . 911,1027 

Wilson v. McMackin 1065 

Wilson v. Rayl 831 

Wilson v. Rees 944 

Wilson v. Rockefeller . 859 

Wilson v. Sears, Roebuck & Co. . 1059 

Wilsons. United States 862,921,1012,1078,1097 

Wimberly v. Labor and Industrial Relations Comm'n of Mo. 942 



cxx TABLE OF CASES REPORTED 

Page 

Winans; Silas u 1022 

Winbourne; Eastern Air Lines, Inc. u 1036 

Winsor; Shelton v. 846 

Wisconsin; Bowers u 837 

Wisconsin; Gillespie v. 1083 

Wisconsin; Kramsvogel v. 901 

Wisconsin; Stevens u 852 

Wisconsin; Stewart v. 906 

Wisconsin Bd. of Attorneys Professional Responsibility; Rader v. . . 820 

Wisconsin Dept. of Industry, Labor & Human Rel. v. Gould Inc. . 942 

Wisconsin Dept. of Industry, Labor & Human Rel. ; Pautz v. 1022 

Witters u Washington Dept. of Services for Blind 481 

Wivorkoski u Pennsylvania 822 

Wold tfc Lerner 983 

Wold Engineering, P. C.; Three Affiliated Tribes v. 900,1046 

Wolf; Lament v. 825 

Wolf v. Richmond County Hospital Authority 826 

Wolverine Packing Co.; Hakim u 998 

Wood v. Federal Deposit Ins. Corp 944 

Wood v. Pennsylvania 1012 

Woodard; Shaw u 922 

Woodrum v. Southern R. Co 821 

Woods; Brown v. 1084 

Woods; Midwife v. 944 

Woods v. Tsuchiya 825 

Woodside v. Hoerner 949 

Woodside v. National Director of Veteran's Administration 851 

Woodward Sand Co. v. Pension Benefit Guaranty Corp 810 

Woolard u United States 921 

Word, In re 814 

Workers' Compensation Appeals Bd.; Hinke v. 1013 

World of Sleep, Inc. u La-Z-Boy Chair Co 823 

World of Sleep, Inc.; La-Z-Boy Chair Co. u 823 

Worre u Department of Revenue of Ore 1058 

Worthen Bank & Trust Co.; Meachum v. 844 

Worthington; Icicle Seafoods, Inc. u 900,978,1080 

Wortman; Sun Oil Co. u 806 

Wright v. Bourbeau 1083 

Wright v. Florida 1094 

Wright v. Girjalva 861 

Wright v. Roanoke Redevelopment and Housing Authority 1081 

Wright v. United States 920 

Wyche; Black v. 1059 

Wyoming; Hopkinson u 865,1026 



TABLE OF CASES REPORTED cxxi 

Page 

Wyrick; Corcoran v. 923 

Wyrick v. Parton 995 

Wyrick; Warden v. 1036 

Yater v. United States 901 

Yates v. Aiken 896 

Yellen v. Colorado 1036 

Yellow Cab Co.; Arrow Northwest, Inc. v. 903 

Ylst; Thomas v. 869 

Yoka; McGlory u 997,1077 

Yolo County; MacDonald, Sommer & Prates u 917 

York v. First Presbyterian Church of Anna 865 

York; Lepiscopo v. 1105 

Yorkshire Wine & Spirits v. McLaughlin 811 

Young v. Arkansas 1070 

Young v. Community Nutrition Institute 1018 

Young v. Great Atlantic & Pacific Tea Co 947 

Young v. Illinois 833 

Young v. Immigration and Naturalization Service 996 

Young; Krodel v. 817 

Young v. Lane 951 

Young v. Wainwright 859 

Yurky; Eichenlaub v. 1049 

Zabel v. United States 1019 

Zant; Brown v. 860,990 

Zeiler v. Ohio High School Athletic Assn 818 

Zellers v. Duckworth 952 

Zeltner v. Fauver 838 

Zenith Radio Corp.; Matsushita Electric Industrial Co. v. . . . 941 

Zeno v. Maggio 1085 

Zerman v. Avant Garde Condominium Assn. , Inc 895,1077 

Zerman v. Jacobs 845,1026 

Zerman v. Melton 845,1026 

Zerman v. Prudential-B ache Securities 845,1026 

Zerman v. White . . .. 895,1077 

Zheng v. United States 1060 

Zimmerman v. Fulcomer . 997 

Zimmer Paper Products Inc. v. Berger & Montague, P. C. . . . 902 

Zinn; Rock v. 1001 

Zlomke v. Flying Tiger Line, Inc . . 833,1014 

Zoeller v. United States . . . 921 

Zucker v. United States . . . 842 

Zuger, In re . 814 

Zuger v. United States 804,805 

Zurica v. United States 1104 



TABLE OF CASES CITED 



Page 

Abbate v. United States, 359 

U.S. 187 89, 92, 94, 95, 99 

Abel v. United States, 362 U.S. 

217 984 

Adams v. United States ex rel. 

McCann, 317 U.S. 269 40 

Addington v. Texas, 441 U.S. 

418 881 

Adelphi Hospital Corp., In re, 

579 F. 2d 726 514 

Aetna Life Ins. Co. v. Haworth, 

300 U.S. 227 933 

Agins v. Tiburon, 447 U.S. 255 126 
Aguilar v. Texas, 378 U.S. 108 984 
Akins v. Texas, 325 U.S. 398 276 
Alabama v. Pugh, 438 U.S. 781 221 
Alexander v. Louisiana, 405 

U.S. 625 261 

Alexander v. Smith. 582 F. 2d 

212 109 

Alfred L. Snapp & Son, Inc. v. 

Puerto Rico ex rel. Barez, 458 

U.S. 592 93 

Allen v. McCurry, 449 U.S. 90 523 
Allen v. State, 253 Ga. 390 402 
Allen v. United States, 164 U.S. 

492 876-878 

Amaro v. Continental Can Co. , 

724 F. 2d 747 1087 

Amato v. Bernard, 618 F. 2d 

559 1087 

Ambach v. Norwick, 441 U.S. 

68 958, 959 

American Surety Co. v. Pauly, 

170 U.S. 133 456 

Anderson v. Bessemer City, 470 

U.S. 564 388, 406, 936, 940 

Anderson v. Celebrezze, 460 

U.S. 780 1301, 1302 

Anderson v. Charles, 447 U.S. 

404 291 

Angel v. Bullington, 330 U.S. 

183 525 



Page 

Appleyard v. Wallace, 754 F. 2d 
955 67 

Arizona v. Rumsey, 467 U.S. 
203 269, 877 

Arkansas Electric Cooperative 
Corp. v. Arkansas Public 
Service Comm'n, 461 U.S. 
375 415, 422, 433 

Arlington Heights v. Metropol- 
itan Housing Development 
Corp., 429 U.S. 252 275, 330 

Armstrong v. Manzo, 380 U.S. 
545 155 

Ameson v. Olsen, 270 N. W. 2d 
125 893, 894 

Arnold v. North Carolina, 376 
U.S. 773 261 

Ashcraf t v. Tennessee, 322 U. S. 
143 109, 110 

Ashwander v. TVA, 297 U.S. 
288 128, 222 

Atascadero State Hospital v. 
Scanlon, 473 U.S. 234 74, 

78, 79, 81 

Atlantic Coast Line R. Co. v. 
Locomotive Engineers, 398 
U.S. 281 525 

Atlas Roofing Co. v. Occupa- 
tional Safety and Health 
Comm'n, 430 U.S. 442 6 

Baker v. Carr, 369 U.S. 186 1053 

Baker v. McCollan, 443 U.S. 
137 333, 339, 357 

Baker v. United States, 131 
U.S. App. D. C. 7 440 

Ballard v. Spradley, 557 F. 2d 
476 37, 44, 48 

Bank of Columbia v. Okely, 4 
Wheat. 235 331 

Bank of United States v. Daniel, 
12 Pet. 32 93 

Baptist Hospital of Southeast 
Tex. v. Baber, 672 S. W. 2d 
296 893, 894 

CXXIII 



CX3OV 



TABLE OF CASES CITED 



Page 

Barefoot v. Estelle, 463 U.S. 

880 883, 885, 1041 

Barina v. Gulf Trading & Trans- 
portation Co., 726 F. 2d 560 910 
Barker v. Wingo, 407 U.S. 
514 147, 247, 248, 251, 313- 

316, 318, 321, 324-326 
Barr v. Matteo, 360 U.S. 564 201, 

207 

Barrowclough v. Kidder, Pea- 
body & Co., 752 F. 2d 923 1087 
Bartkus v. Illinois, 359 U.S. 

121 89, 93, 98, 99 

Baumgartner v. United States, 

322TJ.S. 665 113 

Beans v. Black, 757 F. 2d 933 59 
Beatty v. United States, 389 

U.S. 45 175 

Beavers v. Haubert, 198 U.S. 

77 313 

Beck v. Alabama, 447 U.S. 

625 385, 400 

Beecher v. Alabama, 389 U.S. 

35 110 

Bell v. Burson, 402 U.S. 535 331 
Bell v. Wolfish, 441 U.S. 520 355, 

358 

Beltran v. Myers, 701 F. 2d 91 67 
Benton v. Maryland, 395 U.S. 

784 97, 337 

Berger v. United States, 295 

U.S. 78 283 

Bernal v. Fainter, 467 U.S. 216 959 
Bilbrey v. Brown, 738 F. 2d 

1462 910 

Bishop v. Wood, 426 U.S. 341 13, 
222, 224, 226, 342 
Bivens v. Six Unknown Fed. 
Narcotics Agents, 403 U.S. 
388 198, 201, 207, 211, 272 

B. K. Instrument, Inc. v. 

United States, 715 F. 2d 713 933 
Blackburn v. Alabama, 361 U.S. 

199 109, 116, 885 

Blake v. Zant, 737 F. 2d 925; 513 

F. Supp. 772 999 

Block v. Rutherford, 468 U.S. 

576 355 

Blumenthal v. United States, 
332 U.S. 539 450, 451, 478 



Page 

Board of Curators, Univ. of Mo. 

v. Horowitz, 435 U.S. 78 222, 
225, 226, 230 
Board of Ed. v. Allen, 392 U.S. 

236 492 

Board of Ed. v. Pico, 457 U.S. 

853 959 

Board of Governors, FRS v. Di- 
mension Financial Corp. , 474 

U.S. 361 512 

Board of Regents v. Roth, 408 

U.S. 564 222, 224, 229 

Bob Jones Univ. v. United 

States, 461 U.S. 574 137 

Booker v. Grand Rapids Medi- 
cal College, 156 Mich. 95 222 
Bose Corp. v. Consumers Union 

of United States, Inc., 466 

U.S. 485 113, 114 

Boulden v. Holman, 394 U.S. 

478 111 

Bounds v. Smith, 430 U.S. 817 210 
Boyd v. Boyd, 252 N. Y. 422 401 
Boykin v. Alabama, 395 U.S. 

238 56 

Bradley v. Fisher, 13 Wall. 335 199 
Brandon v. Holt, 469 U.S. 464 221 
Brantley v. McKaskle, 722 F. 

2d 187 109 

Brewer v. Williams, 430 U.S. 

387 170, 175, 191, 192 

Bricker v. Michigan Parole Bd. , 

405 F. Supp. 1340 204 

Briscoe v. LaHue, 460 U.S. 

325 200, 201 

Britt v. Simi Valley Unified 

School Dist., 708 F. 2d 452 146 
Broadrick v. Oklahoma, 413 

U.S. 601 1071 

Brown v. Board of Ed., 347 

U.S. 483 958 

Brown v. Herald Co., 464 U.S. 

928 812, 813, 

899, 993, 1003, 1048 
Brown v. Illinois, 422 U.S. 590 26 
Brown v. Mississippi, 297 U.S. 

278 109 

Brown v. Ohio, 432 U.S. 161 87, 

97 
Brown v. O'Keefe, 300 U.S. 598 508 



TABLE OF CASES CITED 



cxxv 



Page 

Bruno v. United States, 308 

U.S. 287 471 

Bruton v. United States. 391 

U.S. 123 18, 449, 461 

Buck v. Bell, 274 U.S. 200 927 

Buford v. State, 403 So. 2d 

943 880 

Bullington v. Missouri, 451 U.S. 

430 877, 878 

Bullock v. Lucas, 743 F. 2d 

244 871 

Burnet v. Coronado Oil & Gas 

Co., 285 U.S. 393 266, 268, 460 
Burt v. Abel, 585 F. 2d 613 989 
Bushv. Kentucky, 107 U.S. 110 261 
Bush v. Lucas, 462 U.S. 367 272 
Bush v. Muncy, 659 F. 2d 402 930 
Butner v. United States, 440 

U.S. 48 14, 224 

Butz v. Economou, 438 U.S. 

478 200-202, 206-208, 211, 212 
Cabell v. Chavez-Salido, 454 

U.S. 432 959 

Caldwell v. Mississippi, 472 

U.S. 320 394, 397, 399, 

400, 405, 873-875, 883, 
884, 887, 889, 890, 1091 
California v. Carney, 471 U.S. 

386 23 

California v. Green, 399 U.S. 

149 18, 20, 21, 23, 24 

California v. LaRue, 409 U.S. 

109 1071, 1072 

California v. Ramos, 463 U.S. 

992 400, 874 

Campbell v. U. S. District 

Court, 501 F. 2d 196 150, 151 
Carbo v. United States, 364 

U.S. 611 39 

Carey v. O'Donnell, 165 U.S. 

App. D. C. 46 1109 

Carey v. Piphus, 435 U.S. 247 339 
Carroll v. United States, 267 

U.S. 132 986 

Carson v. Maurer, 120 N. H. 

925 893, 894 

Carter v. Jury Comm'n of 

Greene County, 396 U.S. 320 262 
Carter v. Texas, 177 U.S. 442 261 
Cassell v. Texas, 339 U.S. 

282 261, 271, 274, 275 



Page 

Castaneda v. Partida, 430 U.S. 
482 259, 276, 279 

Caston v. Sears, Roebuck, & 
Co., Hattiesburg, Miss., 556 
F. 2d 1305 1036 

Chambers v. Florida, 309 U.S. 
227 109 

Chambers v. Maroney, 399 U.S. 
42 986 

Champlin Refining Co. v. Cor- 
poration Comm'n of Okla., 
286 U.S. 210 419, 426, 433, 434 

Chapman v. California, 386 
U.S. 18 269, 271, 445, 446, 460, 
461, 472-474, 1096, 1097 

Chavis v. Rowe, 643 F. 2d 1281 199 

Chemical Mfrs. Assn. v. Natu- 
ral Resources Defense Coun- 
cil, Inc., 470 U.S. 116 131, 505 

Chevron Oil Co. v. Huson, 404 
U.S. 97 910, 911 

Chevron U. S. A. Inc. v. Natu- 
ral Resources Defense Coun- 
cil, Inc., 467 U.S. 837 131, 
368, 473 

Chiarella v. United States, 445 
U.S. 222 1074 

Chicago Rapid Transit Co., In 
re, 129 F. 2d 1 500, 511, 512 

Chisholm v. Georgia, 2 Dall. 419 78 

Cities Service Gas Co. v. Peer- 
less Oil & Gas Co., 340 U.S. 
179 416, 419, 434, 435 

City. See name of city. 

Ciucci v. Illinois, 356 U.S. 571 103 

Clark v. State, 363 So. 2d 331 288 

Clark v. United States, 289 
U.S. 1 189 

Clearfield Trust Co. v. United 
States, 318 U.S. 363 934 

Cleburne v. Cleburne Living 
Center, 473 U.S. 432 927 

Cody v. Morris, 623 F. 2d 101 931 

Coker v. Georgia, 433 U.S. 
584 403, 929 

Colbeth v. Wilson, 554 F. Supp. 
539 67 

Cole v. Arkansas, 333 U.S. 
196 385, 388, 398, 399 

Coleman v. Alabama, 399 U.S. 
1 170, 269 



CXXVI 



TABLE OF CASES CITED 



Page 

Colorado River Water Con- 
servation Dist. v. United 

States, 424 U.S. 800 966 

Committee for Public Ed. & 

Religious Liberty v. Nyquist, 

413 U.S. 756 485, 

487, 488, 490-492 
Commonwealth. See also 

name of Commonwealth. 
Commonwealth v. Dixon, 344 

Pa. Super. 293 32 

Commonwealth v. Drumgoole, 

341 Pa. Super. 468 32 

Commonwealth v. Green, 396 

Pa. 137 928 

Commonwealth v. Hutchinson, 

343 Pa. Super. 596 32 

Commonwealth v. Mahdi, 388 

Mass. 679 295 

Connecticut v. Johnson, 460 

U.S. 73 385, 461, 464 

Connecticut Bd. of Pardons v. 

Dumschat, 452 U.S. 458 252 

Connors v. United States, 158 

U.S. 408 456 

Coolidge v. New Hampshire, 

403 U.S. 443 984, 987 

Costello v. United States, 350 

U.S. 359 202, 277 

County. See name of county. 
Coyle v. Oklahoma, 221 U.S. 

559 89, 93 

Crawford v. State, 377 So. 2d 

145 189 

Crowell v. Benson, 285 U.S. 22 154 
Crowell v. Randell, 10 Pet. 368 87 
Culombe v. Connecticut, 367 

U.S. 568 112, 116, 119 

Cupp v. Naughten, 414 U.S. 

141 147, 301 

Curtis v. Everette, 489 F. 2d 

516 348 

Curtis Publishing Co. v. Butts, 

388 U.S. 130 954, 960, 961 

Cuyler v. Sullivan, 446 U.S. 335 146 
Daniels v. Williams, 474 U.S. 

327 347, 348, 350, 355, 356, 360 
Davidson v. Cannon, 474 U.S 

344 341, 342 

Davidson v. New Orleans, 96 
U.S. 97 331 



Page 

Davis v. Alaska, 415 U.S. 308 19, 

1111 

Davis v. Georgia, 429 U.S. 122 263 

Davis v. North Carolina, 384 
U.S. 737 111 

Davis v. Passman, 442 U.S. 228 272 

Davis v. United States, 417 
U.S. 333 930, 931 

Dayton Bd. of Ed. v. Brinkman, 
443 U.S. 526 113 

DeFunis v. Odegaard, 416 U.S. 
312 120 

Delaware v. Fensterer, 474 
U.S. 15 1051 

DelCostello v. Teamsters, 462 
U.S. 151 910, 911 

Dent v. West Virginia, 129 U.S. 
114 331 

Deskins v. Commonwealth, 512 
S. W. 2d 520 189 

Diematic Mfg. Corp. v. Pack- 
aging Industries, Inc., 516 
F. 2d 975 1109 

Dillingham v. United States, 
423 U.S. 64 322, 323 

Dobbert v. Wainwright, 468 
U.S. 1231 1076 

Donnelly v. DeChristoforo, 416 
U.S. 637 301 

Donovan v. Allied Industrial 
Workers (Midland), 760 F. 
2d 783 6 

Donovan v. International 
Union, Allied Industrial 
Workers (Whirlpool), 722 F. 
2d 1415 6, 7 

Donovan v. Local 962, Inter- 
national Chemical Workers 
Union (Englehard), 748 F. 2d 
1470 6 

Donovan v. Occupational Safety 
and Health Review Comm'n 
(Mobil Oil), 713 F. 2d 918 6, 7 

Donovan v. Oil, Chemical and 
Atomic Workers Interna- 
tional (American Petrofina), 
718 F. 2d 1341 6 

Donovan v. United Steelwork- 
ers of America (Monsanto), 
722 F. 2d 1158 6 



TABLE OF CASES CITED 



CXXVII 



Page 

Doran v. Salem Inn, Inc., 422 

U.S. 922 1072 

Douglas v. Jeannette, 319 U.S. 

157 337 

Doyle v. Ohio, 426 U.S. 610 285, 

289-300 
Duke Power Co. v. Carolina 

Environmental Study Group, 

Inc., 438 U.S. 59 894 

Dunaway v. New York, 442 

U.S. 200 26 

Dun & Bradstreet, Inc. v. 

Greenmoss Builders, Inc., 

472 U.S. 749 963 

Duncan v. Louisiana, 391 U.S. 

145 337, 384 

Dutton v. Evans, 400 U.S. 74 18 
Eaton v. Price, 360 U.S. 246 1052 
Eddings v. Oklahoma, 455 U.S. 

104 396, 870, 

878, 879, 882, 883, 1040 
Edelman v. Jordan, 415 U.S. 

651 67-70, 73 

Edmonds v. Compagnie Gener- 

ale Transatlantique, 443 U.S. 

256 501 

Edwards v. United States, 564 

F. 2d 652 931 

Elkins v. United States, 364 

U.S. 206 102 

Energy Reserves Group, Inc. v. 

Kansas Power & Light Co., 

459 U.S. 400 435 

Engle v. Isaac, 456 U.S. 107 143 
Enmund v. Florida, 458 U.S. 

782 378, 

381, 382, 384-^05, 407, 
408, 866, 869-872, 929 
Escobedo v. Illinois, 378 U.S. 

478 170 

Estelle v. Gamble, 429 U.S. 

97 330, 333, 354, 357, 358 

Eubanks v. Louisiana, 356 U.S. 

584 261 

Evans v. Dillahunty, 711 F. 2d 

828 201 

Evans v. Meyer, 742 F. 2d 371 59, 

1053 
Everson v. Board of Ed., 330 

U.S. 1 492 

Evitts v. Lucey, 469 U.S. 387 319 



Page 

Ex parte. See name of party. 
Exxon Corp. v. Eagerton, 462 

U.S. 176 429, 432 

Fahy v. Connecticut, 375 U.S. 

85 1096 

Farrell v. State, 101 So. 2d 130 286 
Fasano v. Hall, 615 F. 2d 555 931 
Fast v. School Dist. of City of 

Ladue, 712 F. 2d 379 989 

Fay v. Noia, 372 U.S. 391 282 

Ferri v. Ackerman, 444 U.S. 

193 359 

Fetterman v. University of 

Conn., 192 Conn. 539 1038 

First Bancorporation v. Board 

of Governors, 728 F. 2d 434 364 
Flast v. Cohen, 392 U.S. 83 270 
Fletcher v. Weir, 455 U.S. 

603 290, 291, 300 

Florida v. Meyers, 466 U.S. 

380 1050, 1051 

Florida v. Rodriguez, 469 U.S. 

1 1051 

Florida Dept. of Health v. Flor- 
ida Nursing Home Assn. , 450 

U.S. 147 221 

Ford v. Allen, 728 F. 2d 1369 37, 

44 

Ford v. Carballo, 577 F. 2d 404 38, 

44 
Forte v. State, 686 S. W. 2d 

744 1029 

Francis v. Franklin, 471 U.S. 

307 383 

Francis v. Henderson, 425 U.S. 

536 279 

Franklin v. State, 257 So. 2d 

21 1075 

Franks v. Delaware, 438 U.S. 

154 289 

Frazier v. Cupp, 394 U.S. 731 111 
Fuentes v. Shevin, 407 U.S. 67 337 
Furman v. Georgia, 408 U.S. 

238 867, 927, 928, 973, 1040 

Gallegos v. Colorado, 370 U.S. 

49 116 

Garcia v. San Antonio Metropol- 
itan Transit Authority, 469 

U.S. 528 81, 269 

Garcia v. United States, 469 

U.S. 70 510 



CXXVIII 



TABLE OF CASES CITED 



Page 

Garcia v. Wilson, 731 F. 2d 

640 1107 

Gardner v. Florida, 430 U.S. 

349 400, 885 

Gates v. Spinks, 771 F. 2d 

916 1107 

Germanic, The, 196 U.S. 589 353 
Gerstein v. Pugh, 420 U.S. 103 270 
Gertz v. Robert Welch, Inc., 

418 U.S. 33 953, 954, 961-963 
Gibson v. Mississippi, 162 U.S. 

565 261 

Gideon v. Wainwright, 372 U.S. 

335 169, 170, 271, 461 

Giglio v. United States, 405 

U.S. 150 974 

Giordenello v. United States, 

357 U.S. 480 984 

Glover v. United Grocers, Inc., 

746 F. 2d 1380 910 

Godfrey v. Georgia, 446 U.S. 

420 928 

Goss v. Lopez, 419 U.S. 565 222, 

339 
Grafton v. United States, 206 

U.S. 333 89, 90 

Grand Rapids School Dist. v. 

Ball, 473 U.S. 373 485, 487, 489 
Graves v. Smith's Transfer 

Corp., 736 F. 2d 819 910 

Gray v. Swenson, 430 F. 2d 9 999 
Greathouse v. United States, 

655 F. 2d 1032 931 

Great Lakes Co. v. Huffman, 

319 U.S. 293 72, 73 

Green v. Carlson, 581 F. 2d 669 195 
Greenfield v. State, 337 So. 2d 

1021 287, 288 

Greenfield v. State, 364 So. 2d 

885 288 

Gregg v. Georgia, 428 U.S. 
153 261, 270, 387, 

393, 395, 396, 404, 866, 
867, 876, 888, 891, 911, 
925-928, 935, 973-975, 
988, 989, 1000, 1014, 
1026, 1038-1040, 1073, 
1074, 1094, 1110, 1113 



Greyhound Lines, Inc. v. Wil- 
hite, 474 U.S. 910 



911 



Page 

Grieco v. Meachum, 533 F. 2d 
713 189 

Griffin v. California, 380 U.S. 
609 291 

Griswold v. Connecticut, 381 
U.S. 479 229, 230 

Groppi v. Leslei, 404 U.S. 496 337, 



Haas v. State, 103 Ohio St. 1 143 
Halderman v. Pennhurst State 

School & Hospital, 446 F. 

Supp. 1295 927 

Hall v. State, 47 Md. App. 590 189 
Hamilton v. Alabama, 368 U.S. 

52 170 

Hamilton v. City of Overland 

Park, 730 F. 2d 613 1106-1108 
Hampton v. Chicago, 484 F. 2d 

602 343, 359 

Hans v. Louisiana, 134 U.S. 1 78 

Haring v. Prosise, 462 U.S. 306 13, 

224, 343, 886 

Harlow v. Fitzgerald, 457 U.S. 

800 201, 207 

Harrah Independent School 

Dist. v. Martin, 440 U.S. 194 230 
Harrington v. California, 395 

U.S. 250 269 

Harris v. Nelson, 394 U.S. 286 42 
Hatch v. Oklahoma, 662 P. 2d 

1377 402 

Haynes v. Washington, 373 

U.S. 503 109, 110, 114, 117 

Heckler v. Chaney, 470 U.S. 

821 5 

Heiney v. Florida, 469 U.S. 

920 881, 882 

Heles v. South Dakota, 530 F. 

Supp. 646 1029 

Henry v. Mississippi, 379 U.S. 

443 886 

Hicks v. Oklahoma, 447 U.S. 

343 387, 405 

Hill v. Texas, 316 U.S. 400 259, 

261 
Hill v. United States, 368 U.S. 

424 930 

Hillery, In re, 71 Cal. 2d 857; 

Crim. No. 20424 (Cal.) 256 

Hillery v. Sumner, 496 F. Supp. 

632 265 



TABLE OF CASES CITED 



CXXIX 



Page 

Hillsdale Foundry Co., In re, 1 

BCD 195 504 

Hobby v. United States, 468 

U.S. 339 272, 273, 281 

Hodel v. Virginia Surface Min- 
ing & Reclamation Assn., 452 

U.S. 264 126 

Hoffa v. United States, 385 

U.S. 293 185 

Holland v. United States, 209 F. 

2d 516 880 

Holloway v. Arkansas, 435 U.S. 

475 474 

Holmgren v. United States, 217 

U.S. 509 456 

Honeycutt v. Ward, 612 F. 2d 

36 281 

Hudson v. Palmer, 468 U.S. 

517 203, 328, 

331, 333, 339, 356, 358 
Huff v. United States, 599 F. 2d 

860 931 

Huffman v. Pursue, Ltd., 420 

U.S. 592 966 

Hull, Ex parte, 312 U.S. 546 207 
Hummel v. Commonwealth, 219 

Va. 252 190 

Humphrey v. Cady, 405 U.S. 

504 257 

Huntley v. Community School 

Bd. of Brooklyn, 579 F. 2d 

738 989 

Hurtado v. California, 110 U.S. 

516 331 

Hutchinson v. Proxmire, 443 

U.S. Ill 961, 964 

Illinois v. Gates, 462 U.S. 213 87, 

984, 986 

Illinois v. Vitale, 447 U.S. 410 87 
Imbler v. Pachtman, 424 U.S. 

409 200, 967 

Ingraham v. Wright, 430 U.S. 

651 205, 328, 331, 

335, 346, 352, 353, 358 
In re. See name of party. 
International Harvester Co. v. 

Deere & Co., 623 F. 2d 1207 910 
Inwood Laboratories, Inc. v. 

Ives Laboratories, Inc., 456 

U.S. 844 1096 

Jackson v. Denno, 378 U.S. 

368 117, 391, 885, 887 



Page 

Jackson v. Joliet, 465 U.S. 1049 329 

Jackson v. Virginia, 443 U.S. 
307 881 

Jenkins v. Anderson, 447 U.S. 
231 291, 294 

Jihaad v. O'Brien, 645 F. 2d 
556 199 

Johnson v. Avery, 393 U.S. 483 207 

Johnson v. Glick, 481 F. 2d 1028 348 

Johnson v. St. Vincent Hospi- 
tal, Inc., 404 N. E. 2d 585 893 

Johnson v. United States, 333 
U.S. 10 984 

Johnson v. Zerbst, 304 U.S. 
458 169 

Johnston v. Corinthian Televi- 
sion Corp., 583 P. 2d 1101 959 

Jones v. Alabama, 470 U.S. 
1062 876 

Jones v. North Carolina Pris- 
oners' Labor Union, 433 U.S. 
119 209 

Jones v. State Bd. of Medicine, 
97 Idaho 859 893 

Jones, Inc., In re, 1 BCD 
277 501, 511 

Jordan v. Trainor, 563 F. 2d 
873 70, 75 

Jordan v. Weaver, 472 F. 2d 
985; No. 71 C 70 (ND 111.) 69 

Juidice v. Vail, 430 U.S. 327 967 

Jurek v. Texas, 428 U.S. 262 404, 

Kaiser Aetna v. United States, 

444 U.S. 164 127 

Kann v. United States, 323 U.S. 

88 451 

Kentucky v, Graham, 473 U.S. 

159 221 

Keyishian v. Board of Regents, 

385 U.S. 589 226, 230 

Kirby v. Illinois, 406 U.S. 

682 170, 1028 

Kirchberg v. Feenstra, 450 

U.S. 455 914, 915 

Klopfer v. North Carolina, 386 

U.S. 213 311 

Kothe v. R. C. Taylor Trust, 280 

U.S. 224 508 

Kotteakos v. United States, 328 

U.S. 750 446- 

450, 457, 458, 461, 463- 
465, 471, 472, 475-478 



cxxx 



TABLE OF CASES CITED 



Page 

Kremer v. Chemical Construc- 
tion Corp., 456 U.S. 461 523 
Kross v. Western Electric Co. , 

701 F. 2d 1238 1087 

Krulewitch v. United States, 

336 U.S. 440 475 

Larder v. South Carolina, 474 

U.S. 25 1051 

LaVallee v. Delle Rose, 410 

U.S. 690 112 

Layne v. Vinzant, 657 F. 2d 468 357 
Leary v. United States, 395 

U.S. 6 1074 

Lee v. Washington, 390 U.S. 

333 207 

Lemon v. Kurtzman, 403 U.S. 

602 485, 486, 490-493 

Leroy v. Great Western United 

Corp., 443 U.S. 173 13, 224, 342 
LeRoy Fibre Co. v. Chicago, 

M. & St. P. R. Co., 232 U7S. 

340 335 

Lewis Jones, Inc., In re, 1 BCD 

277 501, 511 

Liberty Mutual Ins. Co. v. Wet- 

zel, 424 U.S. 737 916 

Link v. Wabash R. Co., 370 

U.S. 626 147 

Lockett v. Ohio, 438 U.S. 

586 396, 400, 403, 

404, 871, 879, 1088, 1091 
Logan v. Zimmerman Brush 

Co., 455 U.S. 422 155, 339, 360 
Lo Ji Sales, Inc. v. New York, 

442 U.S. 319 984 

Lorain Journal Co. v. Milkov- 

ich, 449 U.S. 966 956, 

Lorin Corp. v. Goto & Co., 700 

F. 2d 1202 146, 148, 156 

Loudermill v. Cleveland Bd. of 

Ed., 470 U.S. 532 339 

Lummus Co. v. Commonwealth 

Oil Refining Co., 297 F. 2d 

80 1109 

Lynch v. Donnelly, 465 U.S. 

668 486, 489, 493 

Machibroda v. United States, 

368 U.S. 487 56 

Machinists v. Wisconsin Em- 
ployment Relations Comm'n, 
427 U.S. 132 422 



Page 

Maggio v. Fulford, 462 U.S. 

Ill 8, 12, 

23, 27, 113, 116-118, 937 
Maish v. Arizona, 164 U.S. 599 456 
Malloy v. Hogan, 378 U.S. 

1 110, 337 

Manhattan Life Ins. Co. v. Co- 
hen, 24 U.S. 123 289 
Mapp v. Ohio, 367 U.S. 643 337 
Marrese v. American Academy 

of Orthopaedic Surgeons, 470 

U.S. 373 523, 525 

Mars v. United States, 615 F. 2d 

704 931 

Marshall v. Lonberger, 459 

U.S. 422 113, 115, 117, 118, 401 
Marshall v. Sun Petroleum 

Products Co., 622 F. 2d 

1176 6, 7 

Martinez v. California, 444 U.S. 

277 200, 343, 359 

Mary v. Ramsden, 635 F. 2d 

590 198, 199 

Maryland v. Louisiana, 451 

U.S. 725 432 

Massachusetts v. Upton, 466 

U.S. 727 1051 

Massiah v. United States, 377 

U.S. 201 172, 174- 

176, 178-180, 185-190 
Mathews v. Weber, 423 U.S. 

261 152 

Matzker v. Herr, 748 F. 2d 

1142 357 

Mayola v. Alabama, 623 F. 2d 

992 281 

McCabe & Steen Constr. Co. v. 

Wilson, 209 U.S. 275 456 

McCarthy v. Manson, 714 F. 2d 

234 146, 149 

McClung v. Silliman, 6 Wheat. 

598 36, 41 

McCulloch v. Maryland, 4 

Wheat. 316 93, 332 

McElroy v. United States, 164 

U.S. 76 444, 445, 448, 

455-457, 462-464, 466, 
467, 470, 471, 475, 476 
McGautha v. California, 402 

U.S. 183 396 



TABLE OF CASES CITED 



CXXXI 



Page 

Mclntire v. Wood, 7 Cranch 

504 36, 41 

McKay v. Hammock, 730 F. 2d 

1367 1107 

McMann v. Richardson, 397 

U.S. 759 56-62 

McNeese v. Board of Ed., 373 

U.S. 668 338 

Mealer v. Jones, 741 F. 2d 

1451 185, 190 

Meek v. Pittenger, 421 U.S. 

349 488 

Merrill Lynch, Pierce, Fenner 

& Smith, Inc. v. Curran, 456 

U.S. 353 511 

Middlesex County Ethics Com- 
mittee v. Garden State Bar 

Assn., 457 U.S. 423 966 

Migra v. Warren City School 

Dist. Bd. of Ed., 465 U.S. 

75 523, 526 

Milkovich v. Lorain Journal 

Co., 65 Ohio App. 2d 143 956 
Miller v. Solem, 728 F. 2d 

1020 357 

Miller v. Twomey, 479 F. 2d 

701 340 

Milliken v. Bradley, 433 U.S. 

267 68, 80 

Mincey v. Arizona, 437 U.S. 

385 109, 110, 116 

Miranda v. Arizona, 384 U.S. 

436 26, 84, 106, 108, 110, 117, 

273, 285, 286, 289-300, 
967, 1029, 1051, 1052 
Mismash v. Murray City, 730 F. 

2d 1366 1107, 1108 

Missouri v. Kansas Natural Gas 

Co., 265 U.S. 298 429 

MitcheU v. Forsyth, 472 U.S. 

511 207 

MitcheU v. Scully, 746 F. 2d 951 59 
Mitchum v. Foster, 407 U.S. 

225 359, 526 

Moe v. Confederated Salish and 

Kootenai Tribes, 425 U.S. 

463 11, 12 

Molony v. Boy Comics Publish- 
ers, 277 App. Div. 166 961 
Monell v. New York City Dept. 

of Social Services, 436 U.S. 

658 70 



Page 

Monroe v. Pape, 365 U.S. 

167 338, 355, 359, 360 

Moore v. East Cleveland, 431 

U.S. 494 226, 229, 337 

Moore v. Illinois, 14 How. 13 88, 

98, 100 

Moore v. Sims, 442 U.S. 415 966 
Moragne v. States Marine 

Lines, Inc., 398 U.S. 375 115 
Morrissey v. Brewer, 408 U.S. 

471 204 

Mueller v. Allen, 463 U.S. 

388 485, 490-493 

Mullaney v. Wilbur, 421 U.S. 

684 289 

Murphy v. Waterfront Comm'n, 

378 U.S. 52 102 

Murray's Lessee v. Hoboken 

Land & Improvement Co., 18 

How. 272 332 

NAACP v. Button, 371 U.S. 

415 953 

NLRB v. Bildisco & Bildisco, 

465 U.S. 513 502, 510, 511, 514 
Neal v. Delaware, 103 U.S. 

370 261 

Nettles v. Wainwright, 677 F. 

2d 404 146 

New Haven Inclusion Cases, 

399 U.S. 392 486 

New Jersey v. Portash, 440 

U.S. 450 911 

New Jersey v. T. L. O., 469 

U.S. 325 964, 1050, 1051 

New York v. Ricco, 56 N. Y. 2d 

320 912 

New York State Liquor Author- 

ity v. Bellanca, 452 U.S. 

714 1071, 1072 

New York Times Co. v. Sulli- 
van, 376 U.S. 254 953, 
954, 956-961, 963, 964 
Nielsen, In re, 131 U.S. 176 94 
Nielsen v. Oregon, 212 U.S. 

315 91, 100 

Nilson Van & Storage Co. v. 

Marsh, 755 F. 2d 362 988 

Nixon v. Fitzgerald, 457 U.S. 

731 201 

Norris v. Alabama, 294 U.S. 

587 114 



CXXXEI 



TABLE OF CASES CITED 



Page 

North Carolina v. Alford, 400 

U.S. 25 56 

North Carolina v. Pearce, 395 

U.S. 711 29, 30 

Northern Natural Gas Co. v. 

State Corporation Comm'n of 

Kan., 372 U.S. 84 411, 

415, 417, 419, 420, 422, 
423, 429-433, 437 
Northern Pipeline Co. v. Mara- 
thon Pipeline Co., 458 U.S. 

50 154 

Odom v. State, 403 So. 2d 936 877 

Ohio v. Kovacs, 469 U.S. 274 502, 

508, 509, 517 

Ohio v. Roberts, 448 U.S. 

56 18-20 

Ohio ex rel. Eaton v. Price, 360 

U.S. 246 1052 

Oil, Chem. & Atomic Workers 

Int'l v. Occup. Safety & 

Health Comm'n (Am. Cyna- 

mid), 217 U.S. App. D. C. 137 6 
Oklahoma City v. Tuttle, 471 

U.S. 800 157 

Oliver, In re, 333 U.S. 257 337 
One Lot Emerald Cut Stones v. 

United States, 409 U.S. 232 250 
On Lee v. United States, 343 

U.S. 747 157 

Oregon v. Elstad, 470 U.S. 

298 273 

Orr v. Orr, 440 U.S. 268 913, 914 
Ottenheimer v. Whitaker, 198 

F. 2d 289 500, 510-512 

Oyler v. Boles, 368 U.S. 448 277 
Palmer v. Massachusetts, 308 

U.S. 79 501 

Parham v. Hughes, 441 U.S. 

347 915 

Park Motor Mart, Inc. v. Ford 

Motor Co., 616 F. 2d 

603 146, 149 

Parratt v. Taylor, 451 U.S. 

527 328-333, 337-339, 341, 

342, 346, 347, 350, 358 
Parsons Steel, Inc. v. First Ala. 

Bank of Montgomery, 679 F. 

2d 242 520 

Patsy v. Florida Bd. of Regents, 

457 U.S. 496 222, 1037, 1038 



Page 

Patterson v. Cuyler, 729 F. 2d 

925 108 

Patterson v. Mintzes, 717 F. 2d 

284 145, 146 

Patton v. Yount, 467 U.S. 

1025 112, 114, 116, 118 

Paul v. Davis, 424 U.S. 693 332 
Payne v. Virginia, 468 U.S. 

1062 1051 

Penn Central Transportation 

Co. v. New York City, 438 

U.S. 104 126 

Pennhurst State School & 

Hospital v. Halderman, 465 

U.S. 89 68 

Pennsylvania v. Goldhanuner, 

474 U.S. 28 1051 

People v. Costello, 101 App. 

Div. 2d 244 190 

People v. DeFore, 242 N. Y. 

13 192 

People v. Garcia, 36 Cal. 3d 



539 



402 



People v. Hillery, 34 Cal. Rptr. 

853; 65 Cal. 2d 795 256 

People v. Hillery, 62 Cal. 2d 

692 256, 258, 275 

People v. Hillery, 10 Cal. 3d 

897 256, 267 

People v. Mealer, 57 N. Y. 2d 

214 190 

People v. Schindler, 114 Cal. 

App. 3d 178 295 

People v. Vanda, 111 111. App. 

3d 551 295 

Perez v. Dana Corp., Parish 

Frame Div., 718 F. 2d 581 911 
Perry v. Sindermann, 408 U.S. 

593 222, 224 

Peters v. Kiff, 407 U.S. 493 279 
Peyton v. Rowe, 391 U.S. 54 280 
Phillips Petroleum Co. v. Wis- 
consin, 347 U.S. 672 419, 430 
Picard v. Connor, 404 U.S. 

270 257, 258 

Pierre v. Louisiana, 306 U.S. 

354 261 

Pierson v. Ray, 386 U.S. 547 199- 

201, 203 
Pike v. Bruce Church, Inc., 397 

U.S. 137 416, 435 



TABLE OF CASES CITED 



CXXXIII 



Page 

Poe v. Ullman, 367 U.S. 497 229 
Pollard v. United States, 352 

U.S. 354 322 

Ponte v. Real, 471 U.S. 491 204 
Porm v. White, 762 F. 2d 635 357 
Powell v. Alabama, 287 U.S. 

45 57, 169, 172 

Powell v. Irving, 684 F. 2d 494 201 
Preiser v. Rodriguez, 411 U.S. 

475 209 

Presnell v. Georgia, 439 U.S. 

14 385, 387, 388, 398, 399 

Price v. Johnston, 334 U.S. 

266 42, 212 

Price v. State, 362 So. 2d 204 380 
Procunier v. Navarette, 434 

U.S. 555 201 

Proffitt v. Florida, 428 U.S. 

242 404 

Propper v. Clark, 337 U.S. 

472 13, 224, 342 

Public Service Comm'n v. Wy- 

coff Co., 344 U.S. 237 72, 73 

Public Service Comm'n of N.Y. 

v. Mid-Louisiana Gas Co. , 463 

U.S. 319 420, 432 

Puerto Rico v. Shell Co., 302 

U.S. 253 88, 90 

Pulley v. Harris, 465 U.S. 

37 387, 974 

Pullman-Standard v. Swint, 456 

U.S. 273 113 

Quern v. Jordan, 440 U.S. 

332 67-71, 74-76, 79-81 

Raley v. Ohio, 360 U.S. 423 158, 

289 
Randall v. Lukhard, 729 F. 2d 

966 67 

Redding v. Fairman, 717 F. 2d 

1105 199 

Reddix v. Thigpen, 728 F. 2d 

705 382, 385, 402, 403 

Red Lion Broadcasting Co. v. 

FCC, 395 U.S. 367 139 

Reece v. Georgia, 350 U.S. 

85 57, 261 

Rescue Army v. Municipal 

Court, 331 U.S. 549 490 

Revere v. Massachusetts Gen- 
eral Hospital, 463 U.S. 239 358 



Page 

Rhodes v. Chapman, 452 U.S. 

337 355 

Richards v. United States, 369 

U.S. 1 373 

Richardson v. Morris, 409 U.S. 

464 932 

Robinson v. California, 370 U.S. 

660 337 

Rochin v. California, 342 U.S. 

165 331 

Roe v. Wade, 410 U.S. 113 338 
Rogers v. Alabama, 192 U.S. 

2^6 261 

Rogers v. Richmond, 365 U.S. 

534 110, 391 

Rose v. Lundy, 455 U.S. 509 257, 

462, 474 
Rose v. Mitchell, 443 U.S. 

545 261, 262, 264, 266, 

270-274, 278, 280, 474 

Rose v. State, 425 So. 2d 521 877, 

878 
Rosenblatt v. Baer, 383 U.S. 

75 957-960, 963 

Ross v. Kemp, 756 F. 2d 

1483 382, 388, 391 

Ross v. Moffitt, 417 U.S. 600 319 
Ruckelshaus v. Monsanto Co., 

467 U.S. 986 128 

Ruiz v. State, 579 S. W. 2d 

206 869 

Rushen v. Spain, 464 U.S. 

114 113, 115, 118 

Russell v. Southard, 12 How. 

139 486 

Russello v. United States, 464 

U.S. 16 973 

St. Amant v. Thompson, 390 

U.S. 727 953 

Samuels v. Mackell, 401 U.S. 

66 72, 73 

San Antonio Independent 

School Dist. v, Rodriguez, 

411 U.S. 1 958 

Sandstrom v. Montana, 442 

U.S. 510 384, 871 

Santobello v. New York, 404 

U.S. 257 103 

Schad v. Mount Ephraim, 452 

U.S. 61 1072 



cxxxrv 



TABLE OF CASES CITED 



Page 

Schaffer v. United States, 362 

U.S. 511 447, 448, 451, 475, 476 
Schaumburg v. Citizens for a 
Better Environment, 444 
U.S. 620 1071 

Scheuer v. Rhodes, 416 U.S. 
232 201, 207, 359 

Screws v. United States, 325 
U.S. 91 99 

Secretary of State of Md. v. 
Joseph H. Munson Co., 467 
U.S. 947 1071 

SEC v. United Realty & Im- 
provement Co., 310 U.S. 434 514 

Sellars v. Procunier, 641 F. 2d 
1295 201, 204 

Shadwick v. City of Tampa, 407 
U.S. 345 984 

Sheppard v. Maxwell, 384 U.S. 
333 263 

Silkwood v. Kerr-McGee Corp., 
464 U.S. 238 431, 432 

Silva v. Vowell, 621 F. 2d 640 67 

Simon v. St. Elizabeth Medical 
Center, 3 Ohio Op. 3d 164 893 

Sites v. State, 300 Md. 702 1029 

Skelly Oil Co. v. Phillips Petro- 
leum Co., 339 U.S. 667 933, 934 

SMllem v. Estelle, 720 F. 2d 
839 403 

Skiriotes v. Florida, 313 U.S. 
69 89, 93 

Skoda v. Fontani, 646 F. 2d 
1193 989 

Slaughter v. City of Maple- 
wood, 731 F. 2d 587 1037 

Sloan v. Lemon, 413 U.S. 
825 487, 488, 491, 492 

Smith v. Allwright, 321 U.S. 
649 269 

Smith v. Balkcom, 660 F. 2d 
573 882 

Smith v. General Motors Corp. , 
747 F. 2d 372 910 

Smith v. Illinois, 390 U.S. 129 19 

Smith v. Illinois, 469 U.S. 91 1051 

Smith v. Texas, 311 U.S. 128 261 

Smith v. Wade, 461 U.S. 
30 338, 356 

Smith v. Wainwright, 741 F. 2d 
1248 882 



Page 

Snapp & Son, Inc. v. Puerto 

Rico ex rel. Barez, 458 U.S. 

592 93 

Solem v. Helm, 463 U.S. 

277 386, 403, 974 

South v. Maryland, 18 How. 

396 335, 340 

South Dakota v. Neville, 459 

U.S. 553 291, 293, 294, 1029 

South Dakota v. Opperman, 428 

U.S. 364 986 

Southeastern Promotions, Ltd. 

v. Conrad, 420 U.S. 546 1072 
Spalding v. Vilas, 161 U.S. 483 201 
Spano v. New York, 360 U.S. 

315 171, 172, 885 

Spaziano v. Florida, 468 U.S. 

447 385, 387, 388, 399, 401, 

402, 408, 876-878, 881 
State. See also name of State. 
State v. Behler, 65 Idaho 464 928 
State v. Burwick, 442 So. 2d 

944 289, 294 

State v. Duff, 136 Vt. 537 1029 

State v. Fitzsimmons, 94 Wash. 

2d 858 1030 

State v. Hall, 176 Neb. 295 928 
State v.McDaniel, 136 Ariz. 188 402 
State v. Ortiz, 131 Ariz. 195 190 
State v. Peterson 287 S. C. 244 402 
State v. Stokes, 308 N. C. 634 402 
State v. Welch, 135 Vt. 316 1029 
State Farm Mut. Automobile 

Ins. Co. v. Duel, 324 U.S. 154 87 
Steffel v. Thompson, 415 U.S. 

452 72, 73 

Stein v. New York, 346 U.S. 

156 887 

Stevens v. Marks, 383 U.S. 234 102 
Stewart v. Bishop, 403 F. 2d 

674 999 

Stone v. Powell, 428 U.S. 

465 191, 273, 282 

Strader v. Garrison, 611 F. 2d 

61 53 

Strauder v. West Virginia, 100 

U.S. 303 261, 264, 278 

Strickland v. Washington, 466 

U.S. 668 57-60, 

62, 270, 271, 1088-1091 
Stromberg v. California, 283 

U.S. 359 1074, 1076 



TABLE OF CASES CITED 



cxxxv 



Page 

Stryker v. Republic Pictures 

Corp., 108 Cal. App. 2d 191 961 
Stump v. Sparkman, 435 U.S. 

349 200 

Succession of Clement, 402 So. 

2d 702 968 

Sugarman v. Dougall, 413 U.S. 

634 958 

Sulie v. Duckworth, 689 F. 2d 

128 289 

Sumner v. Mata, 449 U.S. 

539 118, 258, 388, 399, 400 

Sumner v. Mata, 455 U.S. 591 118 
Swarts v. Hammer, 194 U.S. 

441 501 
Sweezy v. New Hampshire, 354 

U.S. 234 226 

Talamini v. Allstate Ins. Co., 

470 U.S. 1067 970 

Taylor v. Alabama, 457 U. S. 687 26 
Taylor v. Kentucky, 436 U.S. 

478 880 

Tedder v. State, 322 So. 2d 

908 877, 878, 883 

Tennessee v. Street, 471 U.S. 

409 18 

TVA v. Hill, 437 U.S. 153 374,375 
Thaw, In re, 166 F. 71 38 

Thomas v. Lockhart, 738 F. 2d 

304 59 

Thompson v. Louisiana, 469 

U.S. 17 1051 

Thompson v. State, 456 So. 2d 

444 928 

Time, Inc. v. Firestone, 424 

U.S. 448 961, 964 

Tingler v. Marshall, 716 F. 2d 

1109 147 

Tollett v. Henderson, 411 U.S. 

258 56, 58, 279, 886 

Toucey v. New York Life Ins. 

Co., 314 U.S. 118 524 

Townsend v. Sain, 372 U.S. 

293 111, 112, 115, 258, 260 

Trop v. Dulles, 356 U.S. 86 397, 

1040 

Tumey v. Ohio, 273 U.S. 510 263, 

461 
Ulster County Court v. Allen, 

442 U.S. 140 157, 289 



Page 

United States v. Abadi, 706 F. 

2d 178 988 

United States v. Agurs, 427 

U.S. 97 283 

United States v. Ajlouny, 629 

F. 2d 830 440 

United States v. Arkus, 675 F. 

2d 245 233, 234 

United States v. Auerbach, 420 

F. 2d 921 317 

United States v. Banks, 682 F. 

2d 841 306, 309 

United States v. Banks, 368 F. 

Supp. 1245; 374 F. Supp. 321; 

383 F. Supp. 389 305 

United States v. Barnett, 376 

U.S. 681 269 

United States v. Bastanipour, 

697 F. 2d 170 22 

United States v. Batchelder, 

442 U.S. 114 264, 276 

United States v. Benchimol, 471 

U.S. 453 1051 

United States v. Bishton, 150 

U.S. App. D. C. 51 310 

United States v. Bledsoe, 674 F. 

2d 647 440 

United States v. Boffa, 89 

F. R. D. 523 190 

United States v. Bova, 493 F. 2d 

33 440 

United States v. Bronston, 658 

F. 2d 920 925 

United States v. Brown, 699 F. 

2d 585 912 

United States v. Calandra, 414 

U.S. 338 202, 277 

United States v. Carter, 721 F. 

2d 1514 972 

United States v. Chadwick, 433 

U.S. 1 984 

United States v. Ciambrone, 

601 F. 2d 616 263 

United States v. Classic, 313 

U.S. 299 355 

United States v. County of Alle- 
gheny, 322 U.S. 174 934 
United States v. Cruikshank, 92 

U.S. 542 100 

United States v. Daly, 716 F. 2d 

1499 234 



CXXXVI 



TABLE OF CASES CITED 



Page 

United States v. Darwin, 757 

F. 2d 1193 189 

United States v. DeWolf, 696 

F. 2d 1 186, 189 

United States v. DiFrancesco, 

449 U.S. 117 29-32 

United States v. Eagleston, 417 

F. 2d 11 440 

United States v. $8,850, 461 

U.S. 555 244, 247-249, 251 

United States v. Ellis, 709 F. 2d 

688 440 

United States v. Ewell, 383 

U.S. 116 312, 313 

United States v. Feldman, 761 

F. 2d 380 232 

United States v. Fernando, 745 

F. 2d 1328 924 

United States v. Florea, 541 F. 

2d 568 147 

United States v. Fowler, 735 

F. 2d 823 925 

United States v. Frady, 456 

U.S. 152 270 

United States v. Gagnon, 470 

U.S. 522 1051 

United States v. Gambler, 213 

U.S. App. D. C. 278 925 

United States v. Gavilan, 761 F. 

2d 226 59 

United States v. Gouveia, 467 
U.S. 180 170, 

319, 322, 1028, 1029 
United States v. Graci, 504 F. 

2d 411 440 

United States v. Guzman, 754 

F. 2d 482 232 

United States v. Hale, 422 U.S. 

171 290 

United States v. Harris, 724 F. 

2d 1452 234 

United States v. Hasting, 461 
U.S. 499 269, 445, 

446, 448, 450, 460, 461, 
464, 465, 476, 940, 1096 
United States v. Hatcher, 680 

F. 2d 438 440 

United States v. Henry, 447 
U.S. 264 173- 

177, 186-188, 190, 192 
United States v. Herman, 576 
F. 2d 1139 310, 315, 324 



Page 

United States v. Hinton, 543 F. 

2d 1002 187, 189 

United States v. Hollywood 
Motor Car Co., 458 U.S. 
263 315-317 

United States v. Hopkins, 744 

F. 2d 716 925 

United States v. Horton, 676 F. 

2d 1165 232, 233 

United States v. Irwin, 654 F. 

2d 671 988 

United States v. Jackson, 429 

F. 2d 1368 473 

United States v. Jackson, 508 

F. 2d 1001 310 

United States v. Johns, 469 

U.S. 478 986 

United States v. Lanza, 260 

U.S. 377 88-90, 92 

United States v. Ledesma, 632 

F. 2d 670 453 

United States v. Lefkowitz, 285 

U.S. 452 984 

United States v. Leon, 468 U.S. 
897 191, 192, 273, 

277, 357, 984, 987, 1050 
United States v. Levine, 546 F. 

2d 658 443 

United States v. Lewis, 621 F. 

2d 1382 146 

United States v. Lisenby, 716 

F. 2d 1355 185 

United States v. Loud Hawk, 

628 F. 2d 1139 305, 306, 308 

United States v. MacDonald, 

456 U.S. 1 310-312, 317-321 

United States v. Marion, 404 
U.S. 307 310, 

311, 318-320, 322, 323 
United States v. Martin, 567 F. 

2d 849 440 

United States v. Martin, 704 F. 

2d 267 145 

United States v. Maze, 414 U.S. 

395 443, 452, 453 

United States v. McGuire, 744 

F. 2d 1197 925 

United States v. McManaman, 

606 F. 2d 919 912 

United States v. Merritts, 527 
F. 2d 713 188, 189 



TABLE OF CASES CITED 



cxxxvn 



Page 

United States v. Mississippi 

Tax Comm'n, 421 U.S. 599 11 
United States v. Morrison, 449 

U.S. 361 191 

United States v. Moschiano, 695 

F. 2d 236 190 

United States v. New York 

Telephone Co., 434 U.S. 

159 40, 42 

United States v. O'Brien, 391 

U.S. 367 1072 

United States v. Palmer, 502 

F. 2d 1233 323 

United States v. Payner, 447 

U.S. 727 148 

United States v. Peltier, 422 

U.S. 531 192 

United States v. Raddatz, 447 

U.S. 667 153, 154 

United States v. Ross, 456 U.S. 

798 986 

United States v. Ruggiero, 726 

F. 2d 913 972 

United States v. Rush, 738 F. 2d 

497 232 

United States v. Rutherford, 

442 U.S. 544 137 

United States v. Saintil, 705 F. 

2d 415 324 

United States v. Sampson, 371 

U.S. 75 443, 452, 453 

United States v. Schiavo, 504 F. 

2d 1 147 

United States v. Schronce, 727 

F. 2d 91 146, 148 

United States v. Seckinger, 397 

U.S. 203 934 

United States v. Security In- 
dustrial Bank, 459 U.S. 70 128, 

500 
United States v. Seidel, 620 F. 

2d 1006 440 

United States v. Sherer, 653 F. 

2d 334 925 

United States v. Smith, 440 F. 

2d 521 58 

United States v. Taxe, 540 F. 2d 

961 189 

United States v. Timmreck, 441 

U.S. 780 58 



Page 

United States v. Todisco, 667 F. 

2d 255 232 

United States v. Trujillo, 578 

F. 2d 285 289 

United States v. Turkette, 632 

F. 2d 896 440 

United States v. Valdez, 594 F. 

2d 725 988 

United States v. Varelli, 407 F. 

2d 735 440 

United States v. Wade, 388 

U.S. 218 170 

United States v. Walters, 638 

F. 2d 947 144, 145, 149 

United States v. Wheeler, 435 

U.S. 313 88-90, 92, 98, 100 

United States v. Williams, 615 

F. 2d 585 931 

United States v. Williford, No. 

83-1376 (CA5) 232 

United States v. Wilson, 420 

U.S. 332 313 

United States v. Winter, 663 F. 

2d 1120 972 

United States v. Woodward, 

469 U.S. 105 1051 

United States Alkali Export 

Assn. v. United States, 325 

U.S. 196 41, 42 

United States ex rel. Miller v. 

Twomey, 479 F. 2d 701 340 

United States ex rel. Powell v. 

Irving, 684 F. 2d 494 201 

University of Cal. Regents v. 

Bakke, 438 U.S. 265 226, 230 
Vasquez v. Hillery, 474 U.S. 

254 461 

Village. See name of village. 
Vitek v. Jones, 445 U.S. 480 353 
Wainwright v. Henry, 463 U.S. 

1223 875 

Wainwright v. Sykes, 433 U.S. 

72 270, 289 

Wainwright v. Witt, 469 U.S. 

412 112, 114, 117, 118, 

388, 401, 406, 1050, 1053 
Wallace v. Jaffree, 472 U.S. 

38 486 

Waller v. Florida, 397 U.S. 

387 88, 90 



cxxxvni 



TABLE OF CASES CITED 



Page 

Walz v. Tax Comm'n, 397 U.S. 

664 492 

Ward v. Johnson, 690 F. 2d 

1098 199, 203, 204 

Ward v. Texas, 316 U.S. 547 117 
Ward v. United States, 110 

U.S. App. D. C. 136 475 

Washington v. Confederated 

Tribes of Colville Indian Res- 
ervation, 447 U.S. 134 10-12 
Washington v. Davis, 426 U.S. 

229 275, 874 

Watts v. Indiana, 338 U.S. 49 114 
Wayte v. United States, 470 

U.S. 598 188 

Weems v. United States, 217 

U.S. 349 386, 397 

Welyczko v. U. S. Air, Inc., 733 

F. 2d 239 910 

West v. Rowe, 448 F. Supp. 58 357 
WestfaU v. United States, 274 

U.S. 256 89 

Whirlpool Corp. v. Marshall, 

445 U.S. 1 4 

White v. Maryland, 373 U.S. 

59 170 

White v. Rochford, 592 F. 2d 

381 354 

Wiggins v. County of Alameda, 

717 F. 2d 466 38, 44 

Wiley v. State, 449 So. 2d 756 405 
Williams v. State, 445 So. 2d 

798 405 

Williams v. United States, 168 

U.S. 382 456 

Williamson County Regional 

Planning Comm'n v. Hamilton 

Bank, 473 U.S. 172 126, 128, 129 
Wilson v. Brown, 189 Misc. 79 961 



Page 

Wilson v. Garcia, 471 U.S. 

261 1105, 1106, 1108, 1109 

Wingo v. Wedding, 418 U.S. 

461 152 

Winship, In re, 397 U.S. 358 881 
Wisconsin v. Yoder, 406 U.S. 

205 958 

Witherspoon v. Illinois, 391 

U.S. 510 408 

Wolff v. McDonnell, 418 U.S. 

539 203-205, 207, 

210, 331-333, 353, 358 
Wolman v.Walter, 433 U.S. 229 487 
Wolson v. Reader's Digest 

Assn., Inc., 443 U.S. 157 961, 

963 
Wood v. Strickland, 420 U.S. 

308 201, 204 

Woodard v. Hutchins, 464 U.S. 

377 281 

Woodson v. North Carolina, 428 

U.S. 280 400, 883, 887 

Wright v. Central Du Page 

Hospital Assn., 63 111. 2d 

313 893, 894 

Wyrick v. Fields, 459 U.S. 

42 8, 13, 27, 937 

Yaselli v. Goff, 275 U.S. 503 200 
Ybarra v. Illinois, 444 U.S. 

85 1025, 1026 

Young, Ex parte, 209 U.S. 

123 68, 69, 71, 77 

Youngberg v. Romeo, 457 U.S. 

307 225, 337, 352 

Younger v. Harris, 401 U.S. 

37 72, 391, 966 

Zant v. Stephens, 462 U.S. 

862 387, 396, 885, 1074 

Zant v. Stephens, 250 Ga. 97 396 
Zykan v. Warsaw Community 

School Corporation, 631 F. 2d 

1300 959 



CASES ADJUDGED 

IN THE 

SUPREME COURT OF THE UNITED STATES 

AT 
OCTOBER TERM, 1985 



KENTUCKY v. INDIANA ET AL. 

ON BILL OF COMPLAINT 
No. 81, Orig. Decree entered November 4, 1985 

The Report of the Special Master is received and ordered 
filed. The parties having waived the right to file Excep- 
tions, the Report is adopted. 

DECREE 

IT Is ORDERED, ADJUDGED, AND DECREED THAT: 

1. The boundary line between the State of Indiana and the 
Commonwealth of Kentucky is fixed as geodetically de- 
scribed in Joint Exhibit 50 to the Special Master's Report 
filed with this Court on November 4, 1985. Joint Exhibit 50 
is incorporated by reference herein. 

2. Copies of this Decree and the Special Master's Report 
(including Joint Exhibits 1-50, inclusive) shall be filed with 
the Clerk of this Court, the Archives Division of the Indiana 
Commission on Public Records of Indiana, and the Secretary 
of State of the Commonwealth of Kentucky. 

3. Copies of this Decree and the Special Master's Report 
(including Joint Exhibit 50 and paper prints of Joint Exhibits 
1-49, inclusive, once they become available) shall be filed 
with the Office of the County Recorder in each of the follow- 

l 



2 OCTOBER TERM, 1985 

Decree 474 U, S, 

ing Indiana counties: the counties of Posey, Vanderburgh, 
Warrick, Spencer, Perry, Crawford, Harrison, Floyd, Clark, 
Jefferson, Switzerland, Ohio, and Dearborn; and with the 
County Clerk's Office in the Commonwealth of Kentucky in 
each of the following Kentucky counties: the counties of 
Union, Henderson, Daviess, Hancock, Breckinridge, Meade, 
Hardin, Jefferson, Oldham, Trimble, Carroll, Gallatin, and 
Boone, 

4, The State of Indiana and the Commonwealth of Ken- 
tucky each have concurrent jurisdiction over the Ohio River, 

5, The costs of this proceeding shall be divided between 
the parties as recommended by the Special Master, 



CUYAHOGA VALLEY R. CO. u TRANSPORTATION UNION 3 

Per Curiam 



CUYAHOGA VALLEY RAILWAY CO. v. UNITED 
TRANSPORTATION UNION ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 
STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT 

No. 84-1634. Decided November 4, 1985* 

Pursuant to the Occupational Safety and Health Act (Act), the Secretary 
of Labor issued a citation to Cuyahoga Valley Railway Co. for a viola- 
tion of the Act; the company contested the citation; the Secretary filed 
a complaint with the Occupational Safety and Health Review Commis- 
sion (Commission), and the company filed an answer; and the United 
Transportation Union, which represents the company's employees, in- 
tervened. At the hearing, the Administrative Law Judge (AL J), over 
the Union's objection, granted the Secretary's motion to vacate the 
citation on the ground that the Secretary did not have jurisdiction over 
the relevant safety conditions. Despite the Secretary's objection, the 
Commission directed review of the ALJ's order and ultimately remanded 
the case to the ALJ for consideration of the Union's objections. The 
Court of Appeals affirmed, holding that, because the adversarial process 
was well advanced at the time the Secretary attempted to withdraw the 
citation, the Commission, as the adjudicative body, had the authority to 
review the Secretary's withdrawal of the citation. 

Held: The Secretary has unreviewable discretion to withdraw a citation 
charging an employer with violating the Act. The Court of Appeals' de- 
cision is inconsistent with the detailed statutory scheme, which con- 
templates that the rights created by the Act are to be protected by the 
Secretary, and that enforcement of the Act is the Secretary's sole re- 
sponsibility. The Commission's function is to act as a neutral arbiter 
and to determine whether the Secretary's citations should be enforced. 
Its authority does not extend to overturning the Secretary's decision not 
to issue or to withdraw a citation. 

Certiorari granted; 748 F. 2d 340, reversed. 

PER CURIAM. 

The Secretary of Labor is authorized to inspect work sites 
to uncover noncompliance with the Occupational Safety and 

*Together with No. 85-170, Brock, Secretary of Labor v. United 
Transportation Union et al. t also on petition for certiorari to the same 
court. 



4 OCTOBER TERM, 1985 

Per Curiam 474 U. S. 

Health Act. 29 U. S. C. 657(a). If, as a result of such an 
inspection, the Secretary discovers a violation of the Act, he 
is authorized to issue a citation to the employer fixing a rea- 
sonable time for the abatement of the violation, 658(a), and 
assessing a penalty for the violation. 666. The employer 
then has 15 days in which to contest the citation. 659(a). 
Similarly, employees have 15 days in which to challenge as 
unreasonable "the period of time fixed in the citation for the 
abatement of the violation." 659(c). See generally Whirl- 
pool Corp. v. Marshall, 445 U. S. 1, 9, n. 11 (1980). The 
statute and rules of the Occupational Safety and Health 
Review Commission also permit affected employees to par- 
ticipate as parties in any hearing in which the employer con- 
tests the citation. 29 U. S. C. 659(c); 29 CFR 2200.20(a) 
(1985). 

If an employer contests the citation, and the Secretary 
intends to seek its enforcement, the Secretary must file a 
complaint with the Commission within 20 days, and the em- 
ployer must file an answer within 15 days. 29 CFR 2200.33 
(1985). Once these pleadings are filed, a hearing to deter- 
mine the validity of the citation will be held before an admin- 
istrative law judge (ALJ), with discretionary review by the 
Commission. 29 U. S. C. 659(c), 661(j). 

In the present cases, the Secretary cited Cuyahoga Valley 
Railway Company for a violation of the Act. Cuyahoga con- 
tested the citation, the Secretary filed a complaint with the 
Commission, and Cuyahoga filed an answer. Respondent 
United Transportation Union, which represents Cuyahoga 
employees, properly moved to intervene in the proceedings. 
At the hearing, however, the Secretary moved to vacate the 
citation on the ground that the Federal Railway Administra- 
tion, not the Secretary, had jurisdiction over the relevant 
safety conditions. Despite the Union's objection, the ALJ 
granted the Secretary's motion and vacated the citation. 
Thereafter, the Commission directed review of the ALJ's 
order. The Secretary promptly objected to this action, as- 



CUYAHOGA VALLEY R. CO. u TRANSPORTATION UNION 5 
3 Per Curiam 

serting that part of the citation involved matters beyond the 
reach of the Act and that additional portions of the citation 
did not warrant litigation because of the state of the evi- 
dence. He also stated that the record before the Commis- 
sion was inadequate to resolve the issue posed. 1 Some six 
years later, the Commission rejected this submission and re- 
manded the case to the AL J for consideration of the Union's 
objections. 

The Court of Appeals for the Sixth Circuit affirmed the 
Commission's holding that it could review the Secretary's de- 
cision to withdraw a citation. Donovan v. United Transpor- 
tation Union, 748 F. 2d 340 (1984). The court recognized 
that the Secretary "has the sole authority to determine 
whether to prosecute" a violation of the Act. Id. , at 343. 
Here, however, the court found that the Secretary tf< had 
already made the decision to prosecute by filing a complaint 
and that complaint had been answered at the time the Secre- 
tary attempted to withdraw the citation." Ibid. Because 
the "adversarial process was well-advanced at the time the 
Secretary attempted to withdraw the citation," the court rea- 
soned that the Commission, "as the adjudicative body, had 
control of the case and the authority to review the Secre- 
tary's withdrawal of the citation." Ibid. 2 

1 Vacating the citation thus did not rest solely on jurisdictional grounds. 
Nor did the Court of Appeals' decision sustaining the Commission's order 
focus on jurisdiction. Its holding would permit review by the Commission 
of the Secretary's withdrawal of any citation, whatever the reason, pro- 
vided the adversarial process was sufficiently advanced to vest control in 
the Commission. For these reasons and because the issue relates to the 
statutory division of authority between the Secretary and the Commission, 
rather than the question of judicial review of administrative action, the 
cases do not pose the question whether an agency's decision, resting on 
jurisdictional concerns, not to take enforcement action is presumptively 
immune from judicial review under the Administrative Procedure Act, 5 
U. S. C. 701(a)(2). See Heckler v. Chancy, 470 U. S. 821, 833, n. 4 
(1985). 

2 The Court of Appeals also relied to some extent on the position of the 
Commission as to the scope of its powers. The Commission, however, has 



6 OCTOBER TERM, 1985 

Per Curiam 474 U. S. 

Contrary to the Sixth Circuit's decision, eight other Courts 
of Appeals have held that the Secretary has unreviewable 
discretion to withdraw a citation charging an employer with 
violating the Occupational Health and Safety Act. Donovan 
v. Allied Industrial Workers (Midland), 760 F. 2d 783, 785 
(CA7 1985); Donovan v. Local 962, International Chemical 
Workers Union (Englehard), 748 F. 2d 1470, 1473 (CA11, 
1984); Donovan v. International Union, Allied Industrial 
Workers (Whirlpool), 722 F. 2d 1415, 1422 (CAS 1983); Dono- 
van v. United Steelworkers of America (Monsanto), 722 F. 
2d 1158, 1160 (CA4 1983); Donovan v. Oil, Chemical and 
Atomic Workers International (American Petrofina), 718 F. 
2d 1341, 1352-1353 (CAS 1983), cert, denied, 466 U. S. 971 
(1984); Donovan v. Occupational Safety and Health Review 
Comm'n (Mobil Oil), 713 F. 2d 918, 926-927 (CA2 1983); Oil, 
Chemical and Atomic Workers International v. Occupa- 
tional Safety and Health Comm'n (American Cynamid), 217 
U. S. App. D. C. 137, 144-145, 671 F. 2d 643, 650-651, cert, 
denied, 459 U. S. 905 (1982); Marshall v. Sun Petroleum 
Products Co., 622 F. 2d 1176, 1187 (CA3), cert, denied, 449 
U. S. 1061 (1980). We agree with the decisions of these 
courts. 

It is apparent that the Court of Appeals' decision is in- 
consistent with the detailed statutory scheme which contem- 
plates that the rights created by the Act are to be protected 
by the Secretary. See Atlas Roofing Co. v. Occupational 
Safety and Health Comm'n, 430 U. S. 442, 444-447 (1977); 
Mobil Oil, supra, at 927; Sun Petroleum Products, supra, at 
1187. It is also clear that enforcement of the Act is the sole 
responsibility of the Secretary. Oil, Chemical and Atomic 
Workers International v. Occupational Safety and Health 
Comm'n, supra, at 143, 671 F. 2d, at 649. It is the Secre- 



since revised its view and now declines to review the Secretary's dismissal 
of a citation. Pan American World Airways, Inc., 1984 OSHD 1126,920; 
American Bakeries Co., 1984 OSHD 1126,951; Copperweld Steel Co., 1984 
OSHD 11 26,956. 



CUYAHOGA VALLEY R. CO. u TRANSPORTATION UNION 7 
3 Per Curiam 

tary, not the Commission, who sets the substantive stand- 
ards for the workplace, and only the Secretary has the au- 
thority to determine if a citation should be issued to an 
employer for unsafe working conditions, 29 U. S. C. 658. 
A necessary adjunct of that power is the authority to with- 
draw a citation and enter into settlement discussions with the 
employer. Whirlpool, supra, at 1420; Mobil Oil, supra, at 
927. The Commission's function is to act as a neutral arbiter 
and determine whether the Secretary's citations should be 
enforced over employee or union objections. Its authority 
plainly does not extend to overturning the Secretary's deci- 
sion not to issue or to withdraw a citation. 

The Sixth Circuit's conclusion that the Commission can re- 
view the Secretary's decision to withdraw a citation would 
discourage the Secretary from seeking voluntary settlements 
with employers in violation of the Act, thus unduly hamper- 
ing the enforcement of the Act. Whirlpool, supra, at 1420; 
Mobil Oil, supra, at 927. Such a procedure would also allow 
the Commission to make both prosecutorial decisions and 
to serve as the adjudicator of the dispute, a commingling 
of roles that Congress did not intend. Whirlpool, supra, 
at 1419; Mobil Oil, supra, at 930-931; Sun Petroleum Prod- 
ucts, supra, at 1187. Indeed, the Commission itself was 
created to avoid giving the Secretary both prosecutorial 
and adjudicatory powers. See generally Senate Committee 
on Labor and Public Welfare, Subcommittee on Labor, 92d 
Cong., 1st Sess., Legislative History of the Occupational 
Safety and Health Act of 1970 (S. 2193, Pub. L. 91-596) 
(Comm. Print 1971). Accord, Whirlpool, supra, at 1419; 
Mobil Oil, supra, at 930-931, and n. 21. The other Courts 
of Appeals to address this problem have recognized the dis- 
tinct roles of the Secretary and the Commission and accord- 
ingly have acknowledged that the Secretary's decision to 
withdraw a citation against an employer under the Act is 



8 OCTOBER TERM, 1985 

PerCuriam 474 U.S. 

not renewable by the Commission, Based on these consid- 
erations, the petitions for certiorari are granted, and the 
judgment of the Court of Appeals is 

Reversed. 

JUSTICE BRENNAN and JUSTICE BLACKMUN dissent from 
summary disposition. They would grant certiorari and set 
the cases for oral argument, 

JUSTICE MARSHALL dissents from this summary disposi- 
tion, which has been ordered without affording the parties 
prior notice or an opportunity to file briefs on the merits, 
See Moggto v, Fulford, 462 U, S, 111, 120-121 (1983) (MAR- 
SHALL, J,, dissenting); ffyrick v, FMb, 459 U, S. 42, 51-52 
(1982) (MARSHALL, J., dissenting), 



GAL. BD. OF EQUALIZATION v. CHEMEHUEVI TRIBE 

Syllabus 



CALIFORNIA STATE BOARD OF EQUALIZATION 
ET AL. v. CHEMEHUEVI INDIAN TRIBE 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT 

No. 85-130. Decided November 4, 1985 

Since 1959, California has imposed an excise tax on the distribution of ciga- 
rettes, and respondent Chemehuevi Indian Tribe originally remitted the 
tax to petitioner State Board of Equalization (Board) insofar as the tax 
was imposed on the distribution of cigarettes to non-Indians who pur- 
chased the cigarettes from the Tribe on its reservation in California. 
However, in 1977 the Tribe enacted its own cigarette tax and ceased col- 
lecting and remitting the state tax. When California sought to obtain 
the unremitted tax, the Tribe filed suit in Federal District Court for in- 
junctive relief and a declaratory judgment that the Board could not law- 
fully apply the state tax to cigarettes sold by the Tribe to non-Indian 
purchasers. The court held that the Board's counterclaim for damages 
in the amount of back taxes allegedly owed by the Tribe was barred by 
sovereign immunity, but that California could lawfully require the Tribe 
to collect state taxes imposed on cigarettes that it sold to non-Indians. 
The Court of Appeals affirmed the first determination, but reversed the 
second. 

Held: The Court of Appeals erred insofar as it held that the Tribe could 
not be required to collect the tax imposed by California on non-Indian 
purchasers at tribal smoke shops. It is not necessary that a state ciga- 
rette tax statute contain an express statement that the tax is to be 
passed on to the ultimate purchaser in order for the State to require 
a tribe to collect the tax from non-Indian purchasers and remit the 
amounts of such tax to the State. If the legal incidence of the tax falls 
on non-Indian purchasers, the State may impose on the tribe the burden 
of collecting the tax. The proper test for determining the legal inci- 
dence of the tax is nothing more than a fair interpretation of the taxing 
statute as written and applied. The fairest reading of California's ciga- 
rette scheme as a whole is that the legal incidence of the tax falls on con- 
suming purchasers if the vendors are untaxable, and thus the Board has 
the right to require the Tribe to collect the tax on the Board's behalf with 
regard to purchases of cigarettes by non-Indian consumers. 

Certiorari granted; 757 F. 2d 1047, reversed in part. 



10 OCTOBER TERM, 1985 

Per Curiam 474 U. S. 

PER CURIAM. 

Since 1959 California has imposed an excise tax on the 
distribution of cigarettes. Respondent Chemehuevi Indian 
Tribe sells cigarettes on its reservation in southeastern 
California. The Tribe originally remitted the state tax to 
petitioner State Board of Equalization (petitioner) insofar as 
that tax was imposed on the distribution of cigarettes to non- 
Indian purchasers. But in 1977 the Tribe enacted a ciga- 
rette tax of its own that was the equivalent of the California 
tax, and then ceased collecting and remitting the state tax. 
When California sought to obtain the unremitted tax from 
the Tribe, the Tribe brought an action in the United States 
District Court for the Northern District of California re- 
questing a declaratory judgment that petitioner could not 
lawfully apply the state tax to cigarettes sold by the Tribe 
to non-Indian purchasers. Respondent Tribe also sought an 
injunction preventing petitioner from enforcing the state cig- 
arette tax against it. Petitioner counterclaimed for damages 
in the amount of back taxes claimed to be owed by respond- 
ent Tribe. 

The District Court held that petitioner's counterclaim was 
barred by sovereign immunity, 492 F. Supp, 55 (1979), but 
also held that California could lawfully require the Tribe 
to collect cigarette excise taxes imposed on cigarettes that 
it sold to non-Indians. On appeal, the Court of Appeals 
affirmed the first determination, but reversed the second. 
757 F. 2d 1047 (CA9 1985). 

The Court of Appeals observed that, unlike the Washing- 
ton statute that we considered in Washington v. Confeder- 
ated Tribes of Colville Indian Reservation, 447 U. S. 134 
(1980), California's cigarette tax statute "does not contain 
any . . . explicit 'pass-through' language," 757 F. 2d, at 1056 
(emphasis added), and that therefore the question of the legal 
incidence of the California cigarette tax was not controlled by 
our decision in that case. Id., at 1055-1056. It went on to 
observe that a 'legislative intent to impose even a collection 



CAL. BD. OF EQUALIZATION v. CHEMEHUEVI TRIBE 11 
9 Per Curiam 

burden should be explicitly stated." Id., at 1056, n. 11 (em- 
phasis added). The Court of Appeals concluded that the 
California excise tax, properly construed, did not impose 
liability on the ultimate purchaser of cigarettes when the 
vendor was not a taxable entity. Id., at 1057, and n. 13. 

We think that the Court of Appeals applied a mistaken 
standard in determining whether or not the California tax on 
cigarettes was sufficiently like the Washington tax involved 
in Colville so that the result in the latter case should be 
controlling here. None of our cases has suggested that an 
express statement that the tax is to be passed on to the ulti- 
mate purchaser is necessary before a State may require a 
tribe to collect cigarette taxes from non-Indian purchasers 
and remit the amounts of such tax to the State. Nor do our 
cases suggest that the only test for whether the legal inci- 
dence of such a tax falls on purchasers is whether the taxing 
statute contains an express "pass on and collect" provision. 
Indeed, the Washington statute in Colville did not contain an 
express pass-through provision; the conclusion of the District 
Court in that case, which we accepted, was that the statutory 
scheme required consumers to pay the tax whenever the ven- 
dor was untaxable, and thus the legal incidence of the tax fell 
on purchasers in such cases. 447 U. S., at 142, and n. 9. 
The test to be derived from cases such as Colville and Moe v. 
Confederated Salish and Kootenai Tribes, 425 U. S. 463, 
481483 (1976), is nothing more than a fair interpretation of 
the taxing statute as written and applied, without any re- 
quirement that pass-through provisions or collection require- 
ments be "explicitly stated." Cf. United States v. Missis- 
sippi Tax Com'm'n, 421 U. S. 599, 607-608 (1975). 

We think the fairest reading of California's cigarette 
scheme as a whole is that the legal incidence of the tax falls 
on consuming purchasers if the vendors are untaxable. Cali- 
fornia Rev. & Tax Code Ann. 30107 (West 1979) clearly 
seems to place on consumers the obligation to pay the tax for 
all previously untaxed cigarettes. The Board's implement- 



12 OCTOBER TERM, 1985 

Per Curiam 474 U. S. 

ing regulation does not restrict this obligation to the 
hypotheticals contained in the regulation; it merely indicates 
that the consumer has a duty to pay any tax directly to the 
Board when the vendor is the type of entity on which the 
State cannot impose a collection requirement. See Cal. 
Admin. Register 72, No. 16, Tit. 18, Art. 16, 4091. The 
regulation does not address itself to the question of legal inci- 
dence. And since both Colville and Moe hold that if the legal 
incidence of a state excise tax falls on non-Indian purchasers, 
the State may impose on the tribe the burden of collecting 
that tax from the purchasers, 447 U. S., at 159; 425 U. S., at 
482-483, this particular regulation is inapplicable to purchas- 
ers from Indian tribes if the ultimate liability for the tax falls 
on the purchaser when the vendor is not taxable. We think 
that in the context of the entire California statutory scheme, 
interpreted without any of the restrictive requirements 
which the Court of Appeals employed, Cal. Rev. & Tax Code 
Ann. 30108(a) (West 1979) evidences an intent to impose on 
the Tribe such a "pass on and collect" requirement. We hold 
that the legal incidence of California's cigarette tax falls on 
the non-Indian consumers of cigarettes purchased from re- 
spondent's smoke shop, and that petitioner has the right to 
require respondent to collect the tax on petitioner's behalf. 
The petition for certiorari is granted on the first three 
questions it presents. Insofar as the Court of Appeals held 
that respondent might not be required to collect the cigarette 
tax imposed by California on non-Indian purchasers at tribal 
smoke shops, its judgment is 

Reversed. 

JUSTICE BRENNAN would deny certiorari. 

JUSTICE MARSHALL dissents from this summary dispo- 
sition, which has been ordered without affording the parties 
prior notice or an opportunity to file briefs on the merits. 
See Maggio v. Fulford, 462 U. S. Ill, 120-121 (1983) (MAR- 



CAL. BD. OF EQUALIZATION v. CHEMEHUEVI TRIBE 13 
9 STEVENS, J., dissenting 

SHALL, J., dissenting); Wyrick v. Fields, 459 U. S. 42, 51-52 
(1982) (MARSHALL, J., dissenting). 

JUSTICE BLACKMUN would grant certiorari and give the 
case plenary consideration. 

JUSTICE STEVENS, dissenting. 

The courts of appeals are better qualified to decide ques- 
tions of state law than is this Court. Most circuit judges for- 
merly practiced in States within their respective circuits. 
As judges, they must confront state-law issues on a regular 
basis. For these reasons, it has long been the settled prac- 
tice in this Court to show the greatest deference to opinions 
of the courts of appeals on questions of state law, "In deal- 
ing with issues of state law that enter into judgments of fed- 
eral courts, we are hesitant to overrule decisions by federal 
courts skilled in the law of particular states unless their con- 
clusions are shown to be unreasonable." Propper v. Clark, 
337 U. S. 472, 486-487 (1949). See also Haring v. Prosise, 
462 U. S. 306, 314, n. 8 (1983) ("a challenge to state-law 
determinations by the Court of Appeals will rarely constitute 
an appropriate subject of this Court's review"); Leroy v. 
Great Western United Corp., 443 U. S. 173, 181, n. 11 (1979) 
("it is not our practice to re-examine state-law determina- 
tions of this kind"); Bishop v. Wood, 426 U. S. 341, 345-347 
(1976), and cases cited therein. 

The outcome of this case depends entirely on an interpreta- 
tion of the California Revenue and Taxation Code. I am not 
prepared to say that the Court of Appeals' construction of the 
California Code is correct or incorrect. 1 I am prepared, 

'The Court of Appeals summarized its construction of the California 
statute as follows: 

"Upon careful examination, it is apparent that section 30108(a) is merely 
a procedural section that denotes the manner in which a vendor shall collect 
a tax from a purchaser if and when the purchaser is obligated to pay the 
tax. In the case of a sale with respect to which 'the [usual cigarette] tax 
imposed by Section 30101 is inapplicable,' the vendor is required to collect 
the tax from the purchaser either (a) at the time of sale, if the purchaser is 



14 OCTOBER TERM, 1985 

STEVENS, J., dissenting 474 U. S. 

however, to disagree with the Court's conclusion that we 
should undertake to decide the state-law question in a case of 
this kind. Even if the Court is correct in its view that the 
Court of Appeals applied a mistaken standard in construing 
the California tax, 2 that premise does not justify the action of 
the Court today in undertaking to decide the state-law issue 
on its own particularly when that issue has not been fully 
briefed and argued. At most, the Court should remand the 
case to the Court of Appeals for a reconsideration under the 
proper standard. Such a remand would at least demonstrate 
that this Court has not forgotten that "federal judges who 
deal regularly with questions of state law in their respective 
districts and circuits are in a better position than we" to 
interpret state law. Butner v. United States, 440 U. S. 48, 
58 (1979). Because the Court's summary disposition conveys 
a different message, I respectfully dissent. 



then obligated to pay the tax, or (b) if the purchaser is not then obligated to 
pay the tax, at the time the purchaser becomes so obligated. Gal. Rev. & 
Tax. Code 30108(a) (West 1979). Collection by the vendor is mandatory, 
but only if and when the purchaser has a tax obligation. The section does 
not contain any substantive provisions that themselves impose any tax or 
that indicate when section 30101 is inapplicable. Nor does it specify under 
which situations a purchaser is obligated to pay the tax at the time of sale 
or, if the purchaser is not then obligated, when the purchaser becomes so 
obligated. We find no language in section 30108 the only section on 
which the Board relies for its argument that the incidence of the tax falls 
upon the purchaser that remotely suggests a legislative intent to have 
the purchaser pay the tax whenever the vendor is a non-taxable entity." 
757 F. 2d 1047, 1056-1057 (CA9 1985) (footnotes omitted). 

2 The portion of the Court of Appeals opinion which I have quoted in 
n. 1, supra, suggests that the Court of Appeals would have reached the 
same conclusion even if it had not used the unfortunate word "explicit" ear- 
lier in its opinion. 



DELAWARE v. FENSTERER 15 

Syllabus 

DELAWARE v. FENSTERER 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME 
COURT OF DELAWARE 

No, 85-214. Decided November 4, 1985 

During respondent's murder trial in a Delaware court, the State sought 
to prove that a cat leash was the weapon used in strangling the victim, 
and that a hair found on the leash was similar to the victim's hair and 
had been forcibly removed. The State's expert witness testified that 
in his opinion the hair had been forcibly removed but stated, on both 
direct examination and cross-examination, that he could not recall which 
of three methods he had employed in determining that the hair had been 
forcibly removed. The trial court overruled respondent's objection 
that the admission of the expert's testimony precluded adequate cross- 
examination unless he could testify as to which of the methods he relied 
upon. The defense offered its own expert, who testified that he had 
talked earlier with the State's expert and had been informed as to the 
method employed by the State's expert in reaching his 'forcible re- 
moval" conclusion. The defense's expert then proceeded to challenge 
the premise of that method. Respondent was convicted, but the Dela- 
ware Supreme Court reversed, holding that because the State's expert 
was unable to recall the method he used in arriving at his opinion, the 
admission of the opinion violated respondent's rights under the Con- 
frontation Clause of the Sixth Amendment. 

Held: 

1. The admission of the State's expert's opinion did not offend the 
Confrontation Clause despite his inability to recall the basis for that 
opinion. This case does not fall within the category of Confrontation 
Clause cases involving the admission of out-of-court statements as 
substantive hearsay evidence against the defendant and his literal right 
to "confront" the witness at the time of trial. The State made no 
attempt to introduce an out-of-court statement by its expert for any 
purpose, let alone as hearsay. Nor does this case fall within the cate- 
gory of Confrontation Clause cases involving restrictions imposed by law 
or by the trial court on the scope of cross-examination of prosecution wit- 
nesses. The trial court here did not limit the scope or nature of defense 
counsel's cross-examination of the State's expert. Generally speaking, 
the Confrontation Clause guarantees an opportunity for effective cross- 
examination (as in this case), not cross-examination that is effective in 
whatever way, and to whatever extent, the defense might wish. 



16 OCTOBER TERM, 1985 

Per Curiam 474 U. S. 

2. The prosecution's foreknowledge that its expert would be unable to 
give the precise basis for his opinion did not impose an obligation on it, as 
a matter of due process, to refrain from introducing the expert's testi- 
mony unless the basis for that testimony could definitely be ascertained. 
Whether or not, under state law, the State's expert's opinion should 
have been admitted, the Federal Constitution does not forbid the trial 
court's conclusion that the expert's inability to recall the basis for his 
opinion went to the weight of the evidence, not its admissibility. The 
testimony of the defense's expert, suggesting the actual basis for the 
State's expert's opinion and disputing its validity, dispels any possibility 
of a claim that the introduction of the State's expert's opinion was so 
lacking in reliability and so prejudicial as to deny respondent a fair trial. 
Certiorari granted; 493 A. 2d 959, reversed and remanded. 

PER CURIAM. 

In this case, the Delaware Supreme Court reversed re- 
spondent William Fensterer's conviction on the grounds that 
the admission of the opinion testimony of the prosecution's 
expert witness, who was unable to recall the basis for his 
opinion, denied respondent his Sixth Amendment right to 
confront the witnesses against him. 493 A. 2d 959 (1985). 
We conclude that the Delaware Supreme Court misconstrued 
the Confrontation Clause as interpreted by the decisions of 
this Court. 

I 

Respondent was convicted of murdering his fiancee, Steph- 
anie Ann Swift. The State's case was based on circumstan- 
tial evidence, and proceeded on the theory that respondent 
had strangled Swift with a cat leash. To establish that the 
cat leash was the murder weapon, the State sought to prove 
that two hairs found on the leash were similar to Swift's 
hair, and that one of those hairs had been forcibly removed. 
To prove these theories, the State relied on the testimony 
of Special Agent Allen Robillard of the Federal Bureau of 
Investigation. 

At trial, Robillard testified that one of the hairs had been 
forcibly removed. He explained that, in his opinion, there 
are three methods of determining that a hair has forcibly 



DELAWARE v. FENSTERER 1? 

15 Per Curiam 

been removed: (1) if the follicular tag is present on the hair, 
(2) if the root is elongated and misshaped, or (3) if a sheath 
of skin surrounds the root. However, Robillard went on to 
say that "'I have reviewed my notes, and I have no specific 
knowledge as to the particular way that I determined the 
hair was forcibly removed other than the fact that one of 
those hairs was forcibly removed/" Id., at 963. On cross- 
examination, Agent Robillard was again unable to recall 
which method he had employed to determine that the hair 
had forcibly been removed. He also explained that what he 
meant by "forcibly removed" was no more than that the hair 
could have been removed by as little force as is entailed in 
"^brushing your hand through your head or brushing your 
hair.'" Pet. for Cert. 7. The trial court overruled respond- 
ent's objection that the admission of Robillard's testimony 
precluded adequate cross-examination unless he could testify 
as to which of the three theories he relied upon, explaining 
that in its view this objection went to the weight of the evi- 
dence rather than its admissibility. 

The defense offered its own expert in hair analysis, Dr. 
Peter DeForest, who agreed with Agent Robillard that the 
hairs were similar to Swift's. Doctor DeForest testified 
that he had observed that one of the hairs had a follicular 
tag. He also testified that he had spoken by telephone with 
Robillard, who advised him that his conclusion of forcible re- 
moval was based on the presence of the follicular tag. App. 
to Pet. for Cert. D-2. Doctor DeForest then proceeded to 
challenge the premise of Robillard's theory that the pres- 
ence of a follicular tag indicates forcible removal. According 
to Dr. DeForest, no adequate scientific study supported that 
premise, and a follicular tag could be attached to hairs that 
naturally fall out. 

On appeal, the Delaware Supreme Court reversed re- 
spondent's conviction on the authority of the Confrontation 
Clause. Noting that "[t]he primary interest secured by the 
Clause is the right of cross-examination," 493 A. 2d, at 963, 



18 OCTOBER TERM, 1985 

Per Curiam 474 U. S. 

the court reasoned that "[e]ffective cross-examination and 
discrediting of Agent Robillard's opinion at a minimum re- 
quired that he commit himself to the basis of his opinion." 
Id., at 964 (footnote omitted). Absent such an acknowledg- 
ment of the basis of his opinion, the court believed that 
"defense counsel's cross-examination of the Agent was noth- 
ing more than an exercise in futility." Ibid. Since the court 
could not rule out the possibility that Robillard could have 
been "completely discredited" had he committed himself as to 
the theory on which his conclusion was based, it held that re- 
spondent "was denied his right to effectively cross-examine a 
key state witness." Ibid. Accordingly, the court reversed 
without reaching respondent's additional claim that Ro- 
billard's testimony was inadmissible under the pertinent Del- 
aware Rules of Evidence. We now reverse the Delaware 
Supreme Court's holding that Agent Robillard's inability to 
recall the method whereby he arrived at his opinion rendered 
the admission of that opinion violative of respondent's rights 
under the Confrontation Clause. 

II 

This Court's Confrontation Clause cases fall into two broad 
categories: cases involving the admission of out-of-court 
statements and cases involving restrictions imposed by law 
or by the trial court on the scope of cross-examination. The 
first category reflects the Court's longstanding recognition 
that the "literal right to 'confront' the witness at the time 
of trial . . . forms the core of the values furthered by the 
Confrontation Clause." California v. Green, 399 U. S. 149, 
157 (1970). Cases such as Ohio v. Roberts, 448 U. S. 56 
(1980), and Button v. Evans, 400 U. S. 74 (1970), gave rise to 
Confrontation Clause issues "because hearsay evidence was 
admitted as substantive evidence against the defendants." 
Tennessee v. Street, 471 U. S. 409, 413 (1985). Cf. Bruton v. 
United States, 391 U. S. 123 (1968). 



DELAWARE v. FENSTERER 19 

15 Per Curiam 

The second category of cases is exemplified by Davis v. 
Alaska, 415 U. S. 308, 318 (1974), in which, although some 
cross-examination of a prosecution witness was allowed, the 
trial court did not permit defense counsel to "expose to the 
jury the facts from which jurors, as the sole triers of fact and 
credibility, could appropriately draw inferences relating to 
the reliability of the witness." As the Court stated in Davis, 
supra, at 315, "[confrontation means more than being al- 
lowed to confront the witness physically." Consequently, in 
Davis, as in other cases involving trial court restrictions on 
the scope of cross-examination, the Court has recognized that 
Confrontation Clause questions will arise because such re- 
strictions may "effectively . . . emasculate the right of cross- 
examination itself." Smith v. Illinois, 390 U. S. 129, 131 
(1968). 

This case falls in neither category. It is outside the first 
category, because the State made no attempt to introduce an 
out-of-court statement by Agent Robillard for any purpose, 
let alone as hearsay. Therefore, the restrictions the Con- 
frontation Clause places on "the range of admissible hear- 
say," Roberts, supra, at 65, are not called into play. 

The second category is also inapplicable here, for the trial 
court did not limit the scope or nature of defense counsel's 
cross-examination in any way. The Court has recognized 
that "the cross-examiner is not only permitted to delve into 
the witness' story to test the witness' perceptions and mem- 
ory, but [also] . . . allowed to impeach, i. e., discredit, the 
witness." Davis, 415 U. S., at 316. But it does not follow 
that the right to cross-examine is denied by the State when- 
ever the witness' lapse of memory impedes one method of dis- 
crediting him. Quite obviously, an expert witness who can- 
not recall the basis for his opinion invites the jury to find 
that his opinion is as unreliable as his memory. That the de- 
fense might prefer the expert to embrace a particular theory, 
which it is prepared to refute with special vigor, is irrelevant. 
" 'The main and essential purpose of confrontation is to secure 



20 OCTOBER TERM, 1985 

Per Curiam 474 U. S. 

for the opponent the opportunity of cross-examination. 9 " 
Id., at 315-316 (quoting 5 J. Wigmore, Evidence 1395, 
p. 123 (3d ed. 1940) (emphasis in original)). Generally 
speaking, the Confrontation Clause guarantees an opportu- 
nity for effective cross-examination, not cross-examination 
that is effective in whatever way, and to whatever extent, 
the defense might wish. See Roberts, 448 U. S. , at 73, n. 12 
(even where the only opportunity the defense has to cross- 
examine the declarant is at a preliminary hearing, except in 
"extraordinary cases" where defense counsel provided inef- 
fective representation at the earlier proceeding, "no inquiry 
into ^effectiveness' is required")* This conclusion is con- 
firmed by the fact that the assurances of reliability our cases 
have found in the right of cross-examination are fully satis- 
fied in cases such as this one, notwithstanding the witness' 
inability to recall the basis for his opinion: the factfinder can 
observe the witness' demeanor under cross-examination, and 
the witness is testifying under oath and in the presence of the 
accused. See id., at 63, n. 6. 

We need not decide whether there are circumstances in 
which a witness' lapse of memory may so frustrate any oppor- 
tunity for cross-examination that admission of the witness' 
direct testimony violates the Confrontation Clause. In this 
case, defense counsel's cross-examination of Agent Robillard 
demonstrated to the jury that Robillard could not even re- 
call the theory on which his opinion was based. Moreover, 
through its own expert witness, the defense was able to sug- 
gest to the jury that Robillard had relied on a theory which 
the defense expert considered baseless. The Confrontation 
Clause certainly requires no more than this. 

Although Green, supra, involved a witness who professed 
a lapse of memory on the stand, that case lends no support 
to respondent. In pertinent part, Green was a case in which 
a minor named Porter informed a police officer of a transac- 
tion in which he claimed Green supplied him with drugs. At 
trial, Porter professed to be unable to recall how he obtained 



DELAWARE v. FENSTERER 21 

15 Per Cur lam 

the drugs. The prosecution then introduced Porter's prior 
inconsistent statements as substantive evidence. Green, 399 
U. S., at 152. This Court held that "the Confrontation 
Clause does not require excluding from evidence the prior 
statements of a witness who concedes making the state- 
ments, and who may be asked to defend or otherwise explain 
the inconsistency between his prior and his present version of 
the events in question, thus opening himself to full cross- 
examination at trial as to both stories." Id., at 164. How- 
ever, the Court also concluded that, in the posture of that 
case, it would be premature to reach the question "[wjhether 
Porter's apparent lapse of memory so affected Green's right 
to cross-examine as to make a critical difference in the appli- 
cation of the Confrontation Clause . . . ." Id., at 168. In 
this connection, the Court noted that even some who argue 
that "prior statements should be admissible as substantive 
evidence" believe that this rule should not apply to "the case 
of a witness who disclaims all present knowledge of the ulti- 
mate event," because "in such a case the opportunities for 
testing the prior statement through cross-examination at 
trial may be significantly diminished." Id., at 169, n. 18 
(citations omitted). 

We need not decide today the question raised but not re- 
solved in Green. As Green's framing of that question indi- 
cates, the issue arises only where a "prior statement," not it- 
self subjected to cross-examination and the other safeguards 
of testimony at trial, is admitted as substantive evidence. 
Since there is no such out-of-court statement in this case, the 
adequacy of a later opportunity to cross-examine, as a substi- 
tute for cross-examination at the time the declaration was 
made, is not in question here. 

Under the Court's cases, then, Agent Robillard's inability 
to recall on the stand the basis for his opinion presents none 
of the perils from which the Confrontation Clause protects 
defendants in criminal proceedings. The Confrontation 
Clause includes no guarantee that every witness called by the 



22 OCTOBER TERM, 1985 

Per Curiam 474 U. S. 

prosecution will refrain from giving testimony that is marred 
by forgetfulness, confusion, or evasion. To the contrary, the 
Confrontation Clause is generally satisfied when the defense 
is given a fall and fair opportunity to probe and expose these 
infirmities through cross-examination, thereby calling to the 
attention of the factfinder the reasons for giving scant weight 
to the witness' testimony. Accordingly, we hold that the ad- 
mission into evidence of Agent Robillard's opinion did not of- 
fend the Confrontation Clause despite his inability to recall 
the basis for that opinion. 

The Delaware Supreme Court also appears to have be- 
lieved that the prosecution breached its "serious obligation 
not to obstruct a criminal defendant's cross-examination of 
expert testimony," 493 A. 2d, at 963, seemingly because the 
prosecution knew in advance that Agent Robillard would be 
unable to recall the basis for his opinion when he testified at 
trial. While we would agree that Robillard's testimony at 
the voir dire examination must be taken to have alerted both 
the prosecution and the defense to his lapse of memory, see 
App. to Brief in Opposition A-l, we do not think the prose- 
cution was obliged to refrain from calling Robillard unless it 
could somehow refresh his recollection. Whether or not, 
under state law, Robillard's opinion should have been admit- 
ted into evidence, nothing in the Federal Constitution forbids 
the conclusion reached by the trial court in this case: that the 
expert's inability to recall the basis for his opinion went to the 
weight of the evidence, not its admissibility. See United 
States v. Bastanipour, 697 F. 2d 170, 176-177 (CA7 1982), 
cert, denied, 460 U. S. 1091 (1983). That being so, the pros- 
ecution's foreknowledge that its expert would be unable to 
give the precise basis for his opinion did not impose an obliga- 
tion on it, as a matter of due process, to refrain from intro- 
ducing the expert's testimony unless the basis for that testi- 
mony could definitely be ascertained. We need not decide 
whether the introduction of an expert opinion with no basis 
could ever be so lacking in reliability, and so prejudicial, as to 



DELAWARE v. FENSTERER 23 

15 STEVENS, J. , concurring in judgment 

deny a defendant a fair trial. The testimony of Dr. DeFor- 
est, suggesting the actual basis for Robillard's opinion and 
vigorously disputing its validity, utterly dispels any possibil- 
ity of such a claim in this case. 

The petition for certiorari is granted, the judgment of the 
Delaware Supreme Court is reversed, and the case is re- 
manded to that court for further proceedings not inconsistent 
with this opinion. 

It is so ordered. 

JUSTICE MARSHALL dissents from this summary dispo- 
sition, which has been ordered without affording the parties 
prior notice or an opportunity to file briefs on the merits. 
See Maggio v. Fulford, 462 U. S. Ill, 120-121 (1983) (MAR- 
SHALL, J., dissenting); Wyrick v. Fields, 459 U. S. 42, 51-52 
(1982) (MARSHALL, J., dissenting). 

JUSTICE BLACKMUN would grant certiorari and give this 
case plenary consideration. 

JUSTICE STEVENS, concurring in the judgment. 

Summary reversal of a state supreme court's application 
of federal constitutional strictures to its own police and 
prosecutors in novel cases of this kind tends to stultify 
the orderly development of the law. Because I believe this 
Court should allow state courts some latitude in the admin- 
istration of their criminal law, 1 I voted to deny certiorari. 
Cf. California v. Carney, 471 U. S. 386, 395 (1985) (STE- 
VENS, J., dissenting). 

On the merits, I find the issue much closer to the question 
reserved in California v. Green, 399 U. S. 149, 168-170 



1 In California v. Green, 399 U. S. 149, 171 (1970), THE CHIEF JUSTICE 
wrote separately "to emphasize the importance of allowing the States to 
experiment and innovate, especially in the area of criminal justice." He 
correctly observed that "neither the Constitution as originally drafted, nor 
any amendment, nor indeed any need, dictates that we must have absolute 
uniformity in the criminal law in all the States." Id., at 171-172. 



24 OCTOBEE TERM, 1985 

STEVENS, J., concurring in judgment 474 U. S. 

(1970), than does the Court. The question reserved in Green 
concerned the admissibility of an earlier out-of-court state- 
ment by the witness Porter of which Porter disclaimed any 
present recollection at the time of trial. 2 The question 
decided by the Court today concerns the admissibility of an 
earlier out-of-court conclusion reached by a witness who dis- 
claims any present recollection of the basis for that con- 
clusion. The reasons for carefully reserving the question 
in Green persuade me that this case should not be decided 
without full argument. Nevertheless, because the Court has 
granted certiorari and decided to act summarily, because I 
am not persuaded that the Federal Constitution was violated, 
and because the State Supreme Court remains free to rein- 
state its judgment on the basis of its interpretation of state 
law, I reluctantly concur in the judgment. 



2 "Whether Porter's apparent lapse of memory so affected Green's right 
to cross-examine as to make a critical difference in the application of the 
Confrontation Clause in this case is an issue which is not ripe for decision at 
this juncture" (footnote omitted). Id., at 168-169. See also id., at 169, 
n. 18. 



LANIER v. SOUTH CAROLINA 25 

Per Curiam 

LANIER v. SOUTH CAROLINA 

ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF 
APPEALS OF SOUTH CAROLINA 

No. 85-5260. Decided November 4, 1985 

Petitioner, who was convicted of armed robbery, contended that the South 
Carolina trial court should have suppressed his confession as being the 
product of an illegal arrest. The South Carolina Court of Appeals af- 
firmed the trial court, holding that, even assuming petitioner's arrest 
was illegal, the confession was admissible because voluntariness was the 
test of admissibility and petitioner did not claim that his confession was 
not voluntary. 

Held: The South Carolina Court of Appeals' judgment is vacated, and the 
case is remanded, because the court's reasoning is inconsistent with well- 
established precedent holding that a finding of voluntariness of a con- 
fession for Fifth Amendment purposes is not by itself sufficient to purge 
the taint of an illegal arrest, but is merely a threshold requirement for 
Fourth Amendment analysis. 

Certiorari granted; vacated and remanded. 

PER CURIAM. 

The motion for leave to proceed in forma pauperis is 
granted. The petition for a writ of certiorari is granted. 

Petitioner was convicted of armed robbery. He contends 
that his confession should have been suppressed because it 
was the product of an illegal arrest. The South Carolina 
Court of Appeals affirmed the trial court's rejection of his 
motion to suppress the confession: 

"Assuming, without deciding, that Lanier's arrest was 
illegal, we nevertheless hold his confession was admissi- 
ble. A confession made while the accused is in custody 
before any warrant for his arrest has been issued is not 
per se inadmissible. State v. Funchess, 255 S. C. 385, 
179 S. E. 2d 25, cert, denied, 404 U. S. 915, 92 S. Ct. 
236, 30 L. Ed. 2d 189 (1971). Voluntariness remains as 
the test of admissibility. Id. Even if the arrest was 



26 OCTOBER TERM, 1985 

Per Curiam 474 U. S. 

illegal, the confession will be admissible if it is freely and 
voluntarily given. State v. Plath, 277 S. C. 126, 284 
S. E. 2d 221 (1981). Since Lanier does not claim his 
confession was not voluntary, his argument that the 
confession was inadmissible is without merit." App. to 
Pet. for Cert. A-2. 

The South Carolina Supreme Court declined farther review. 
Under well-established precedent, "the fact that [a] confes- 
sion may be Voluntary" for purposes of the Fifth Amend- 
ment, in the sense that Miranda warnings were given and 
understood, is not by itself sufficient to purge the taint of the 
illegal arrest. In this situation, a finding of 'voluntariness' 
for purposes of the Fifth Amendment is merely a threshold 
requirement for Fourth Amendment analysis." Taylor v. 
Alabama, 457 U. S. 687, 690 (1982). See also Dunaway v. 
New York, 442 U. S. 200, 217-218 (1979); Brown v. Illinois, 
422 U. S. 590, 602 (1975). . The reasoning of the South Caro- 
lina Court of Appeals is inconsistent with those cases. We 
therefore vacate the judgment and remand the case to that 
court for further proceedings. 

It is so ordered. 

JUSTICE O'CONNOR, with whom JUSTICE REHNQUIST 
joins, concurring in the judgment. 

I concur in the judgment of the Court vacating the judg- 
ment and remanding this case to the South Carolina Court of 
Appeals. For the reasons stated in my opinion in Taylor v. 
Alabama, 457 U. S. 687, 694 (1982) (O'CONNOR, J., dissent- 
ing), I believe the court on remand can consider the timing, 
frequency, and likely effect of whatever Miranda warnings 
were given to petitioner as factors relevant to the question 
whether, if petitioner was illegally arrested, his subsequent 
confession was tainted by the illegal arrest. 

JUSTICE MARSHALL dissents from this summary dispo- 
sition, which has been ordered without affording the parties 
prior notice or an opportunity to file briefs on the merits. 



Lfati 




J I 








y 




28 OCTOBER TERM, 1985 

Per Curiam 474 U. S. 

PENNSYLVANIA v. GOLDHAMMER 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME 
COURT OF PENNSYLVANIA, EASTERN DISTRICT 

No. 84-1852. Decided November 12, 1985 

Respondent was convicted in a Pennsylvania trial court on multiple counts 
of theft and multiple counts of forgery. He -was sentenced to two-to-five 
years of imprisonment on a single theft count and five years of probation 
on one of the forgery counts. Sentence was suspended on the remaining 
counts. On respondent's appeal, the Pennsylvania Superior Court held 
that the statute of limitations barred the prosecution of several of the 
theft counts, including the count on which respondent had received his 
sentence of imprisonment. On the Commonwealth's appeal, the Penn- 
sylvania Supreme Court affirmed the Superior Court's ruling on the stat- 
ute of limitations, and denied the Commonwealth's request that the case 
be remanded to the trial court for resentencing on the remaining theft 
counts. The court acknowledged that a defendant could be twice sen- 
tenced for the same count when there was an intervening retrial at the 
defendant's request, but it held that resentencing on the counts which 
were affirmed after an appeal by the Commonwealth was barred by the 
Double Jeopardy Clause when the sentence of imprisonment on another 
count was vacated. 

Held: The Pennsylvania Supreme Court's rationale was inconsistent with 
the rationale of the holding in United States v. DiFrancesco, 449 U. S. 
117, that the Double Jeopardy Clause was not violated by 18 U. S. C. 
3576, which allows the United States to appeal to a court of appeals the 
sentence given a "dangerous special offender" by a district court, and al- 
lows the court of appeals to affirm the sentence, impose a different sen- 
tence, or remand to the district court for further sentencing proceedings. 
Since the Pennsylvania Supreme Court in this case held that resentenc- 
ing was barred by the Double Jeopardy Clause, it did not consider 
whether Pennsylvania laws in effect at the time allowed the State to ob- 
tain review of the sentences on the counts for which the sentence had 
been suspended. Accordingly, the judgment is reversed, and the case is 
remanded for a determination of that issue and for further consideration 
in light of DiFrancesco. 

Certiorari granted; 507 Pa. 236, 489 A. 2d 1307, reversed and remanded. 

PER CURIAM. 

The Supreme Court of Pennsylvania held below that the 
Double Jeopardy Clause of the Fifth Amendment of the 



PENNSYLVANIA v. GOLDHAMMER 29 

28 Per Curiam 

United States Constitution barred the resentencing of re- 
spondent. 507 Pa. 236, 489 A. 2d 1307 (1985). We grant 
certiorari, and, on the basis of our decision in United States 
v. DiFrancesco, 449 U. S. 117 (1980), we reverse and re- 
mand. The motion of respondent for leave to proceed in 
forma pauper is is granted. 

Respondent was convicted in the Philadelphia Court of 
Common Pleas on 56 counts of forgery and 56 counts of theft. 
He was sentenced by the trial court to two-to-five years of 
imprisonment on a single theft count and five years of proba- 
tion on one of the forgery counts. Sentence was suspended 
on the remaining counts. 

Respondent appealed all 112 convictions to the Superior 
Court of Pennsylvania. That court ruled that the statute of 
limitations barred the prosecution of 34 of the theft counts, 
including the count on which respondent had received his 
sentence of imprisonment. 

On appeal by the Commonwealth, the Supreme Court of 
Pennsylvania affirmed the Superior Court's ruling on the 
statute of limitations. In addition, the Supreme Court of 
Pennsylvania denied petitioner's request that the case be re- 
manded to the trial court for resentencing on the remaining 
22 theft counts. The court acknowledged that a defendant 
could be twice sentenced for the same count when there was 
an intervening retrial at the request of the defendant, but it 
held that resentencing on the counts which were affirmed 
after an appeal by the Commonwealth is barred by the Dou- 
ble Jeopardy Clause when the sentence of imprisonment on 
another count is vacated. 507 Pa., at 248-251, 489 A. 2d, 
at 1314-1315, citing North Carolina v. Pearce, 395 U. S. 711 
(1969). 

The Pennsylvania Supreme Court's rationale is inconsist- 
ent with the rationale of the holding of this Court in DiFran- 
cesco, supra. In DiFrancesco we upheld the constitutional- 
ity of 18 U. S. C. 3576, which allows the United States to 
appeal to the court of appeals the sentence given a "danger- 
ous special offender" by a district court, and allows the court 



30 OCTOBER TERM, 1985 

Per Curiam 474 U. S. 

of appeals to affirm the sentence, impose a different sen- 
tence, or remand to the district court for further sentencing 
proceedings. 

We noted that the decisions of this Court "clearly establish 
that a sentencing in a noncapital case] does not have the 
qualities of constitutional finality that attend an acquittal." 
DiFrancesco, supra, at 134. In North Carolina v. Pearce, 
supra, we held that a court could sentence a defendant on re- 
trial more severely than after the first trial. Any distinction 
between the situation in Pearce and that in DiFrancesco is 
"no more than a 'conceptual nicety.'" DiFrancesco, supra, 
at 136 (quoting Pearce, supra, at 722). Indeed, a resentenc- 
ing after an appeal intrudes even less upon the values pro- 
tected by the Double Jeopardy Clause than does a resentenc- 
ing after retrial: 

"[T]he basic design of the double jeopardy provision [is 
to] bar . . . repeated attempts to convict, with conse- 
quent subjection of the defendant to embarrassment, ex- 
pense, anxiety, and insecurity, and the possibility that 
he may be found guilty even though innocent. These 
considerations, however, have no significant application 
to the prosecution's statutorily granted right to review a 
sentence. This limited appeal does not involve a retrial 
or approximate the ordeal of a trial on the basic issue of 
guilt or innocence." DiFrancesco, supra, at 136. 

In DiFrancesco a federal statute clearly allowed the appel- 
late review of the sentences at issue. The Court noted that, 
in light of that statute, the defendant could not claim any 
expectation of finality in his original sentencing. 449 U. S. , 
at 136, 139. Here, because the Pennsylvania Supreme Court 
held that resentencing was barred by the Double Jeopardy 
Clause, there was no need to consider below whether the 
Pennsylvania laws in effect at the time allowed the State to 
obtain review of the sentences on the counts for which the 
sentence had been suspended. We reverse and remand the 



PENNSYLVANIA u GOLDHAMMER 31 

28 STEVENS, J., dissenting 

case to the Supreme Court of Pennsylvania for a determina- 
tion of that issue, and for further consideration of this case in 
light of DiFrancesco, supra. 

Reversed and remanded. 

JUSTICE BRENNAN dissents from summary disposition and 
would vote to deny the petition. 

JUSTICE MARSHALL, dissents from this summary dispo- 
sition, which has been ordered without affording the parties 
prior notice or an opportunity to file briefs on the merits. 
See Maggio v. Fulford, 462 U. S. Ill, 120-121 (1983) (MAR- 
SHALL, J., dissenting); Wyrick v. Fields, 459 U. S. 42, 51-52 
(1982) (MARSHALL, J. , dissenting). 

JUSTICE BLACKMUN would grant the petition and set the 
case for argument. 

JUSTICE STEVENS, dissenting. 

In United States v. DiFrancesco, 449 U. S. 117 (1980), this 
Court upheld the constitutionality of a federal statute that 
permitted Government appeals from certain sentences. 
Today, the Court summarily reverses because it finds that 
the "Pennsylvania Supreme Court's rationale is inconsistent 
with the rationale of the holding of this Court in DiFran- 
cesco." Ante, at 29. 

The Pennsylvania Supreme Court opinion does not mention 
DiFrancesco. The appellate briefs before the Pennsylvania 
court did consider that case, however. 1 Indeed, Mr. Gold- 
hammer argued that DiFrancesco did not govern precisely 
because no Pennsylvania statute authorized government 
appeals of sentences at the time of his conviction and sen- 
tencing. 2 Mr. Goldhammer has raised the same argument 

1 See Brief for Appellant in No. CR 84-1852, p. 13, n. 3; Brief for Appel- 
lee in No. CR 84-1852, pp. 13-15. 

2 See id. , at 14 ("At the time the instant case arose in Pennsylvania, the 
Commonwealth did not have the right to appeal from a sentence. That 
right did not exist until the sentencing guidelines were approved in July, 
1982. See 42 Pa. C. S. A. 9781"). 



32 OCTOBER TERM, 1985 

STEVENS, J., dissenting 474 U. S. 

before this Court in his response to the Commonwealth's pe- 
tition. 3 Moreover, it should be noted that, unlike the situa- 
tion in DiFrancesco, the Pennsylvania prosecutor made no 
attempt to take an appeal from the sentences imposed by the 
trial court. The Commonwealth, in its petition and in its 
reply, has not adequately addressed these points. 

The majority recognizes that the Pennsylvania court's 
judgment may ultimately be supported by state-law grounds. 
See ante, at 30-31. In view of that uncertainty, and in 
view of the Commonwealth's failure to address this important 
issue, I would simply deny certiorari. 4 I would presume 
that the Pennsylvania Supreme Court determined that Di- 
Francesco did not govern for the plausible state-law reason 
that had been argued to it. 

Three factors support this presumption. First, Pennsyl- 
vania's current statutory framework for permitting govern- 
ment appeals from sentences was not in place at the time of 
Mr. Goldhammer's conviction and sentencing. 6 Second, 
Pennsylvania courts are now applying the new statutory 
framework, 6 with full knowledge of DiFrancesco. 7 Third, 



3 See Brief in Opposition 9, n. 6 ("At the time of the trial and sentence 
here, there was no statutory provision in Pennsylvania for appeal of 
sentences"). 

4 See this Court's Rule 21.5 ("The failure of a petitioner to present with 
accuracy, brevity, and clearness whatever is essential to a ready and ade- 
quate understanding of the points requiring consideration will be a suffi- 
cient reason for denying his petition"). 

6 See 42 Pa. Cons. Stat. 9781 (1982); 204 Pa. Code 303.1 et seq. 
(1982), reproduced following Pa. Stat. Ann., Tit. 42, 9721 (Purdon 1982). 

6 See, e. g., Commonwealth v. Dixon, 344 Pa. Super. 293, 496 A. 2d 
802 (1985); Commonwealth v. Hutchinson, 343 Pa. Super. 596, 495 A. 2d 
956 (1985); Commonwealth v. Drumgoole, 341 Pa. Super. 468, 491 A. 2d 
1352 (1985). 

7 See Commonwealth v. Drumgoole, supra, at 477, n. 2, 491 A. 2d, at 
1356, n. 2 ("Appellee also suggests that to grant the relief sought by the 
Commonwealth *would appear to be a violation of the Fifth Amendment 
Constitutional guarantee against double jeopardy/ This argument has 



PENNSYLVANIA v. GOLDHAMMER 33 

28 STEVENS, J., dissenting 

and perhaps most importantly, we should assume that a 
State Supreme Court is familiar with this Court's precedents 
and with its own State's law. Because the majority's sum- 
mary reversal reflects a contrary assumption, I respectfully 
dissent. 



been resolved contrary to appellee's claim. United States v. DiFrancesco, 
449 U. S. 117 . . ."). 



34 OCTOBER TERM, 1985 

Syllabus 474 U. S. 

PENNSYLVANIA BUREAU OF CORRECTION v. 
UNITED STATES MARSHALS SERVICE ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 
THE THIRD CIRCUIT 

No. 84-489. Argued October 15, 1985 Decided November 18, 1985 

A Pennsylvania state prisoner temporarily confined in the Philadelphia 
County jail brought suit in Federal District Court under 42 U. S. C. 
1983 against various county officials, alleging that they had beaten and 
harassed him. The court assigned the action to a Magistrate, who is- 
sued writs of habeas corpus ad testificandum for the producing of state 
prisoners, including the plaintiff, as witnesses. The order directed the 
state Wardens to transport the prisoners to the county jail nearest the 
federal court, and then directed the United States Marshals Service (re- 
spondent) to transport the prisoners from the county jail to the federal 
court. Respondent's motion for reconsideration of the latter part of the 
order was denied. The Court of Appeals reversed in pertinent part, 
holding that the All Writs Act .did not confer power on the District Court 
to compel noncustodians to bear the expense of producing the prisoner- 
witnesses. 

Held: There is no statutory authority for the order in question. Pp. 37- 
43. 

(a) Title 28 U. S. C. 567 and 569(b) merely enumerate respondent's 
obligations to obey a federal court's mandate and to transport prisoners 
if the court so orders. The court's authority to issue such mandates 
must derive from some independent source. Pp. 37-38. 

(b) The habeas corpus statutes -28 U. S. C. 2241(c)(5) and 2243- 
do not authorize a federal court to direct a writ ad testificandum to par- 
ties who do not have custody of the prisoner. There is no evidence in 
the language of 2241 and 2243, in their legislative history, or in the 
common-law writ ad testificandum that courts are empowered to cause 
third parties who are neither custodians nor parties to the litigation to 
bear the cost of producing the prisoner in federal court. Nor does Carbo 
v. United States, 364 U. S. 611, support an expansive reading of the 
power conferred upon federal district courts by the writ of habeas corpus 
ad testificandum. Pp. 38-39. 

(c) The All Writs Act does not confer authority upon a federal court to 
issue an order such as the one at issue. An examination of the Act, its 
legislative history, and this Court's past interpretations of the Act all 
support this conclusion. Although the Act empowers federal courts to 



PA. BUREAU OF CORRECTION v. U. S. MARSHALS 35 

34 Opinion of the Court 

fashion extraordinary remedies when the need arises, it does not author- 
ize them to issue ad hoc writs whenever compliance with statutory pro- 
cedures appears inconvenient or less appropriate. Pp. 4043. 
737 F. 2d 1283, affirmed. 

POWELL, J., delivered the opinion of the Court, in which BURGER, C. J. , 
and BEENNAN, WHITE, MARSHALL, BLACKMUNT, REHNQUIST, and O'CON- 
NOR, JJ., joined. STEVENS, J., filed a dissenting opinion, post, p. 43. 

Leroy S. Zimmerman, Attorney General of Pennsylvania, 
argued the cause for petitioner. With him on the briefs were 
Maria Parisi Vickers, Andrew S. Gordon, and Allen C. War- 
shaw, Senior Deputy Attorneys General. 

Mark I. Levy argued the cause for respondents. With him 
on the brief were Acting Solicitor General Fried, Acting As- 
sistant Attorney General Willard, Deputy Solicitor General 
Geller, and Barbara L. Henuig. 

JUSTICE POWELL delivered the opinion of the Court. 

The question presented is whether a United States district 
court may compel the United States Marshals Service to 
transport state prisoners to the federal courthouse to testify 
in an action brought under 42 U. S. C. 1983 by a state pris- 
oner against county officials. 



In June 1980, Richard Garland brought suit under 42 
U, S. C. 1983 against various Philadelphia County officials 
in the United States District Court for the Eastern District 
of Pennsylvania, alleging that he had been beaten and ha- 
rassed by the defendant deputy sheriffs and prison guards. 
At the time Garland filed this suit, he was incarcerated in the 
Philadelphia County jail, but was subsequently transferred 
to a state facility. The District Court assigned the action to 
a Magistrate for disposition on the merits. 

In December 1982, the Magistrate issued writs of habeas 
corpus ad testificandum to produce five witnesses, including 
plaintiff Garland. At that time, Garland was in a state cor- 



36 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

rectional facility in Huntingdon, approximately 220 miles 
from Philadelphia. The other four witnesses were all con- 
fined in state facilities over 100 miles from Philadelphia. 
The orders directed the Wardens of the state facilities to 
transport inmates from state prison to the county jail nearest 
the federal courthouse in Philadelphia. The orders then 
commanded the United States Marshals Service (Marshals) 1 
to transport the inmates from that county facility to the fed- 
eral court and to maintain custody of them during trial. The 
Marshals unsuccessfully moved for reconsideration of that 
portion of the order that directed them to transport the state 
prisoners from the county jail to the federal courthouse and 
to guard them during trial. 

On the Marshals' appeal from this denial, the Court of Ap- 
peals for the Third Circuit reversed in part, holding that the 
All Writs Act did not confer power upon the District Court 
"to compel non-custodians to bear the expense of [the pro- 
duction of witnesses] simply because they have access to a 
deeper pocket." Garland v. Sullivan, 737 F. 2d 1283, 1287 
(1984) (emphasis in original). 2 The Court of Appeals did 
find, however, that the District Court has the power to com- 
pel the Marshals to take custody of state prisoners while 
those prisoners are in the federal courthouse in connection 

1 The Marshals are within the Executive Branch of the Federal Govern- 
ment. The Marshal for each district is appointed by the President, 28 
U. S. C. 561 (a), is subject to the supervision and direction of the Attor- 
ney General, see, e. g., 562, 567, 569(c), 571(a) and (d), and is funded 
through Department of Justice appropriations, e. g. t 567. 

2 Judge Becker concurred in the judgment, believing the court to be 
bound by McClung v. Silliman, 6 Wheat. 598 (1821), and Mclntire v. 
Wood, 1 Cranch 504 (1813). He hoped that this Court would "find that, 
because statutes can adapt to fit the needs of changing times, the All Writs 
Act now permits what, in the time of Mclntire and McClung it did not." 
737 F. 2d, at 1292 (footnote omitted). Judge Atkins, sitting by designa- 
tion from the Southern District of Florida, concurred in part and dissented 
in part, believing that the Third Circuit could impose a duty on the Mar- 
shals to transport state prisoners. Ibid. 



PA. BUREAU OF CORRECTION v. U. S. MARSHALS 37 

34 Opinion of the Court 

with federal judicial proceedings. Ibid. Finally, the court 
held that the District Court could order the Marshals to take 
custody of state prisoners if the trial court made a spe- 
cific finding that special security risks required that state 
prisoner- witnesses be in the Marshals' custody away from the 
federal courthouse. Id. , at 1289. 

The Commonwealth Bureau of Correction (Common- 
wealth) petitioned this Court for a writ of certiorari on the 
question whether a federal court can command the Marshals 
to share responsibility with state officials for transporting 
state inmates to the federal courthouse when neither the 
State nor any state official is a party. 3 Because this case 
presents a recurrent problem on which the Circuits differ, we 
granted the writ. 469 U. S. 1206 (1985). We find that 
there is no statutory authority for a United States district 
court to command the Marshals to take custody of state pris- 
oners outside the federal courthouse during the normal 
course of producing state prisoner-witnesses for trial, and 
accordingly affirm. 

II 

The Commonwealth argues that the Marshals have a statu- 
tory obligation to obey the lawful orders and writs of the fed- 
eral courts, 28 U. S. C. 569(b), and are statutorily author- 
ized to expend funds for the specific purpose of transporting 
prisoners, 567. It also contends that these provisions rec- 
ognize the authority of the district courts to seek assistance 
from the Marshals. Two Circuits have summarily agreed. 
Ford v. Allen, 728 F. 2d 1369, 1370 (CA11 1984) (per 
curiam); Ballard v. Spradley, 557 F. 2d 476, 481 (CA5 1977). 
Two other Circuits have relied in part on these provisions in 



8 The propriety of that part of the order commanding the Marshals to 
take custody of the state prisoners while they are in the federal courthouse 
is not specifically before us. The Marshals have conceded that they are 
responsible for the custody of state prisoners in the federal courthouse as 
witnesses or parties. 



38 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

imposing the responsibility for transport upon the Marshals. 
Wiggins v. County of Alameda, 717 F. 2d 466 (CA9 1983), 
cert, denied sub nom. California Dept. of Corrections v. 
United States, 465 U. S. 1070 (1984); Ford v. Carballo, 577 
F. 2d 404 (CA7 1978). The Court of Appeals for the Third 
Circuit is the only Circuit to deny a district court authority to 
compel the Marshals to assist in transporting state prisoner- 
witnesses to the federal courthouse. 

Sections 569(b) and 567 merely enumerate obligations of 
the Marshals. The Marshals must obey the mandates of 
federal courts and transport prisoners if the court so orders. 
The courts' authority to issue such writs, however, must de- 
rive from some independent statutory source. We therefore 
must look to the habeas corpus statute or the All Writs Act to 
see if they authorize federal courts to order the transporta- 
tion of state prisoners to the federal courthouse. 

Ill 

The Court of Appeals reasoned that the Magistrate's order 
amounted to a writ of habeas corpus ad testificandum* prop- 
erly directed only to the custodian, and that there was no 
basis in the habeas corpus statute for the District Court's 
authority to direct a writ ad testificandum to a noncustodian. 
We agree. 

Since 1867, the writ of habeas corpus has incorporated the 
common-law command that the writ "shall be directed to the 
person in whose custody the party is detained." Act of Feb. 
5, 1867, ch. 28, 14 Stat. 386 (emphasis added). See In re 
Thaw, 166 F. 71, 74-75 (CAS 1908). It was the custodian 
who then was to "make return of said writ and bring the 
party before the judge who granted the writ." Ibid. Con- 



4 The habeas corpus statute provides in pertinent part that the writ 
"shall be directed to the person having custody of the person detained," 
and that 'the person to whom the writ is directed shall be required to 
produce at the hearing the body of the person detained." 28 U. S. C. 
2243. 



PA. BUREAU OF CORRECTION v. U. S. MARSHALS 39 

34 Opinion of the Court 

gress preserved this unambiguous directive throughout sub- 
sequent revisions, and the current habeas corpus statute 
states that the writ "shall be directed to the person having 
custody of the person detained." 28 U. S. C. 2243. Sec- 
tion 2243 also specifically provides that "the person to whom 
the writ is directed shall be required to produce at the hear- 
ing the body of the person detained." 

The language of the statute thus expressly commands the 
custodian to bring his prisoner to the court, but extends this 
duty to no other. See also Fed. Rule Civ. Proc. 81(a)(2) 
("The writ of habeas corpus . . . shall be directed to the per- 
son having custody of the person detained"). We find no evi- 
dence in the language of 2241 and 2243, in their legislative 
history, or in the common-law writ ad testificandum to sug- 
gest that courts are also empowered to cause third parties 
who are neither custodians nor parties to the litigation to 
bear the cost of producing the prisoner in a federal court. 
We therefore conclude that there is no basis in the habeas 
corpus statute for a federal court to order the Marshals to 
transport state prisoners to the federal courthouse. 5 



6 Carbo v. United States, 364 U. S. 611 (1961), does not support an ex- 
pansive reading of the power conferred upon federal district courts by the 
writ of habeas corpus ad testificandum. In Car&o, the Court found that 
although 2241 contained an express territorial limitation of "[w]rits of 
habeas corpus," 28 U. S. C. 2241 (a), the limitation applied to habeas cor- 
pus ad subjicieridum, but not to habeas corpus ad proseqitendum. The 
Commonwealth similarly argues that the provisions in 2243 that direct 
the custodian to produce the prisoners in court do not apply to the writ ad 
testificandum but instead are limited to the Great Writ, habeas corpus 
ad subjiciendum. 

Carbo's expansive reading of the statute was consistent with common- 
law procedure and requirements applied to the writ ad pronequendmn and 
with the legislative history of 224 l(a) 364 U S , at 615-618 But this 
case involves the writ ad teNtificatidHw, which has been confined in its 
application to the actual custodian of the prisoners from before its initial 
codification in 1789 to the present We therefore do not believe that 
Carbo justifies a more expansive view of the writ of habeas corpus ad 
testificandum today. 



40 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

IV 

Finally, the Commonwealth argues that the All Writs Act, 
28 U. S. C. 1651, 6 confers authority upon a district court to 
order the Marshals to transport state prisoners to and from 
the federal courthouse in connection with federal litigation. 
It argues that the "deluge of ... civil rights actions" calls for 
"creative" use of federal judicial power to alleviate the drain 
on the States' fiscs from the transport of inmates to and from 
federal courthouses. 

It is true that this Court consistently has construed the All 
Writs Act to authorize a federal court "to issue such com- 
mands ... as may be necessary or appropriate to effectuate 
and prevent the frustration of orders it has previously issued 
in its exercise of jurisdiction otherwise obtained." United 
States v. New York Telephone Co., 434 U. S. 159, 172 (1977). 
This Court also has held that the supplemental powers of the 
Act are not limited to situations where it is "necessary" to 
issue the writ or order "in the sense that the court could not 
otherwise physically discharge its appellate duties." Adams 
v. United States ex rel. McCann, 317 U. S. 269, 273 (1942). 
An examination of the language of the All Writs Act, its leg- 
islative history, and our decisions construing it convinces us, 
however, that the Act does not authorize a district court to 
order the Marshals to transport state prisoners from state 
prisons to the federal courthouse in the ordinary course of 
litigation in federal courts. 

The All Writs Act originally was codified in 14 of the 
Judiciary Act of 1789, 1 Stat. 81-82, which provided that 

"all the . . . courts of the United States, shall have 
power to issue writs of scire facias, habeas corpus, and 
all other writs not specifically provided for by statute, 



6 The All Writs Act provides in pertinent part: 

"The Supreme Court and all courts established by Act of Congress may 
issue all writs necessary or appropriate in aid of their respective jurisdic- 
tions and agreeable to the usages and principles of law. " 



PA. BUREAU OF CORRECTION u U. S. MARSHALS 41 

34 Opinion of the Court 

which may be necessary for the exercise of their respec- 
tive jurisdictions, and agreeable to the principles and 
usages of law." 

Our early view of the scope of the all writs provision con- 
fined it to filling the interstices of federal judicial power when 
those gaps threatened to thwart the otherwise proper exer- 
cise of federal courts' jurisdiction. McClung v. Sillirnan, 6 
Wheat. 598 (1821); Mclntire v. Wood, 7 Cranch 504 (1813). 
This limitation is especially significant in construing federal 
courts' power to issue writs of habeas corpus ad testifican- 
dum: The Judiciary Act of 1789 codified the ad testificandum 
writ in the same section as the all writs provision. 

The original phrase "not specifically provided for by stat- 
ute" remained in the all writs section until 1948. Although 
the legislative history is scant, it appears that Congress then 
merely consolidated various provisions into 1651 and made 
"necessary changes in phraseology" without substantive 
amendment. See H. R. Rep. No. 308, 80th Cong., 1st 
Sess., A144 (1947); see also id., at 5. The legislative history 
did, however, state that the new section was "expressive of 
the construction recently placed upon [the all writs provision] 
by the Supreme Court in U. S. Alkali Export Assn. [v. 
United States, 325 U. S. 196 (1945)]." Id., at A145. In 
United States Alkali, the Court rejected use of the all writs 
provision to enable the Court to review a lower court's deter- 
mination where jurisdiction did not lie under an express stat- 
utory provision. Chief Justice Stone wrote: 

"The writs may not be used as a substitute for an author- 
ized appeal; and where, as here, the statutory scheme 
permits appellate review of interlocutory orders only on 
appeal from the final judgment, review by certiorari or 
other extraordinary writ is not permissible in the face of 
the plain indication of the legislative purpose to avoid 
piecemeal reviews." 325 U. S., at 203. 



42 OCTOBER TERM, 1985 

Opinion of the Court 474 TJ. S. 

Although Congress dropped the phrase "not specifically 
provided for by statute" in its 1948 consolidation, we con- 
clude that it apparently intended to leave the all writs provi- 
sion substantially unchanged. That intention and the favor- 
able reference to United States Alkali convince us that the 
1948 changes in phraseology do not mark a congressional ex- 
pansion of the powers of federal courts to authorize issuance 
of any "appropriate" writ. 

Nevertheless, the Commonwealth, relying on United 
States v. New York Telephone Co., supra, at 171, as well as 
Harris v. Nelson, 394 U. S. 286, 299 (1969), and Price v. 
Johnston, 334 U. S. 266, 282 (1948), insists that under the All 
Writs Act the District Court can order the Marshals to trans- 
port state prisoners upon a mere statement that such an 
order would be "necessary or appropriate." As summarized 
in the margin below, these cases are clearly distinguishable 
and lend little support to the Commonwealth's argument. 7 



7 In United States v. New York Telephone Co., 434 U. S. 159 (1977), the 
Court held that a District Court could under the All Writs Act compel a 
third party, the New York Telephone Company, to assist the Federal Bu- 
reau of Investigation in installing devices under a warrant that would reg- 
ister the numbers dialed on certain telephones. In that case the All Writs 
Act filled a gap in federal statutes by granting the District Court jurisdic- 
tion over the only party capable of installing the devices. In the instant 
case, by contrast, the habeas corpus statute already expressly provides for 
the issuance of a writ "to the person having custody of the person 
detained." 

In Price v. Johnston, 334 U. S. 266 (1948), the Court held that a Court of 
Appeals could order a prisoner to be brought before it to argue his own 
appeal, finding that the All Writs Act was a mechanism to achieve the "ra- 
tional ends of law." Id., at 282. In Price, however, there was no alterna- 
tive way to bring the prisoner before the court. In the present case, the 
traditional writ ad testificandum is sufficient. Similarly, Harris v. Nel- 
son, 394 U. S. 286 (1969), held that the District Court in that case had no 
alternative means of providing an effective habeas corpus proceeding ex- 
cept by use of an extraordinary writ. New York Telephone, Price, and 
Harris afforded resort to the All Writs Act to fill statutory interstices. 
We do not find their reasoning controlling here, where a writ ad testifican- 



PA. BUREAU OF CORRECTION u U. S. MARSHALS 43 

34 STEVENS, J., dissenting 

The All Writs Act is a residual source of authority to issue 
writs that are not otherwise covered by statute. Where a 
statute specifically addresses the particular issue at hand, it 
is that authority, and not the All Writs Act, that is control- 
ling. Although that Act empowers federal courts to fashion 
extraordinary remedies when the need arises, it does not au- 
thorize them to issue ad hoc writs whenever compliance with 
statutory procedures appears inconvenient or less appropri- 
ate. We need not categorically rule out reliance on the All 
Writs Act and the use of Marshals in procuring or safeguard- 
ing state prisoner-witnesses in the course of federal litiga- 
tion. There may be exceptional circumstances in which a 
district court can show clearly the inadequacy of traditional 
habeas corpus writs, such as where there are serious security 
risks. In such circumstances, a district court may find it 
"necessary or appropriate" for Marshals to transport state 
prisoners. We therefore leave open the question of the 
availability of the All Writs Act to authorize such an order 
where exceptional circumstances require it. 

V 

We conclude, at least in the absence of an express finding 
of exceptional circumstances, that neither a magistrate nor a 
district court has authority to order the Marshals to trans- 
port state prisoners to the federal courthouse to testify in an 
action brought by a state prisoner under 42 U. S. C. 1983 
against county officials. Accordingly, we affirm the Court of 
Appeals for the Third Circuit. 

It is so ordered. 

JUSTICE STEVENS, dissenting. 

This is an exceptional case. It involves a dispute between 
the Marshals Service and a Federal District Court. Ordi- 
narily, the marshals and the federal courts which they serve 



dum directed to the custodian indisputably provides a district court with a 
means of producing a prisoner-witness. 



44 OCTOBER TERM, 1985 

STEVENS, J., dissenting 474 U. S. 

have a close and harmonious relationship. To be sure, the 
special responsibilities of the marshal an office that serves 
both the Executive and Judicial Branches can give rise to 
administrative problems. 1 Customarily such problems are 
resolved on a voluntary, cooperative basis, either in the indi- 
vidual court or circuit, or in high-level discussions between 
the Executive and Judicial Branches. 2 Open disputes be- 
tween the marshals and the courts are rare, and appropri- 
ately so. 

The question whether federal marshals should be required 
to transport state prisoners to testify in federal litigation is, 
however, a recurring problem that has not been resolved am- 
icably, either between the federal courts and the marshals 3 
or between the marshals and the States. 4 The majority 
notes that, in "exceptional circumstances," ante, at 43, the 
district court may order marshals to transport state prison- 
ers. I entirely agree. The majority's holding, however, is 
that, absent such circumstances, the district court may not 



*See Report by the Comptroller General, U. S. Marshals' Dilemma: 
Serving Two Branches of Government (1982). 

2 See, e. g., U. S. Marshals Service, Oversight Hearing before the 
Subcommittee on Courts, Civil Liberties, and the Administration of Justice 
of the House Committee on the Judiciary, 99th Cong., 1st Sess., 3 (1985) 
(citing agreement between the Attorney General and THE CHIEF JUSTICE 
regarding court security); id., at 26 (citing agreement between the Attor- 
ney General and THE CHIEF JUSTICE regarding contract guard program); 
Hearings on H. R. 7039 before the Subcommittee on Courts, Civil Liber- 
ties, and the Administration of Justice of the House Committee on the 
Judiciary, 97th Cong., 2d Sess., 175 (1982) (citing agreement between the 
Attorney General and THE CHIEF JUSTICE regarding court security and 
the allocation of marshals). 

3 See Ford v. Allen, 728 F. 2d 1369 (CA11 1984) (per cumam); Wiggins 
v. County of Alameda, 717 F. 2d 466 (CA9 1983), cert, denied, 465 U. S. 
1070 (1984); Ford v. Carballo, 577 F. 2d 404 (CA7 1978); Ballard v. 
Spradley, 557 F. 2d 476 (CAS 1977). 

4 See Wiggins v. County of Alameda, 717 F. 2d, at 469 ("We decry the 
inability of state and federal officials to resolve such matters fairly and 
equitably . . ."). 



PA. BUREAU OF CORRECTION v. U. S. MARSHALS 45 

34 STEVENS, J., dissenting 

order marshals to do so because no statute expressly author- 
izes that action. In my view, this conclusion ignores the im- 
portance of history and tradition in defining the relationship 
between the Marshals Service and the Federal Judiciary. 

History and tradition suggest that the court's authority 
over the marshal is not so narrowly circumscribed as the 
Court suggests. In the Judiciary Act of 1789, Congress 
placed the marshal under the direction of the court. Be- 
cause the office of the marshal was patterned after the office 
of the common-law sheriff, 5 there was no need for Congress 
to define the judge's authority to issue orders to the marshal 
with any particularity. Instead, 27 of the Judiciary Act of 
1789 provided that a marshal should be appointed in each 



5 See U. S. Dept. of Justice, United States Marshals Service 
Then . . . and Now 3 (1978) ("the Marshal carried on the tradition of the 
English common law sheriff, possessing complete authority within his baili- 
wick"). Indeed, one of the objections expressed to the Judiciary Act of 
1789 was that it would lead to conflicts between the federal marshals and 
the local sheriffs. 1 Annals of Cong. 826 (1789) (statement of Rep. Stone) 
("in different tribunals, not connected, mischiefs may happen. Will a sher- 
iff be justifiable in delivering up his prisoner to the marshal, or will it be a 
proper return by the marshal that the prisoner is kept by the State sher- 
iff"). In 1792, moreover, Congress expressly provided that "the marshals 
of the several districts and their deputies, shall have the same powers in 
executing the laws of the United States, as sheriffs and their deputies in 
the several states have by law, in executing the laws of their respective 
states," 1 Stat. 265 a provision that, in substance, exists today, 28 
U. S. C. 570. On the power of the sheriff at English common law, see 
G. Atkinson, Sheriff-Law 5 (1861) ("The sheriff is the immediate officer to 
all the Courts at Westminster to execute writs. . . . [Wjhether a writ 
comes to him, by authority, or without authority, or is awarded against 
whom it does not lie, he cannot doubt, or dispute its validity"). 

The title for the marshals may have been derived from the example of 
the marshals to the British and colonial vice-admiralty courts. See L. 
Ball, The United States Marshals of New Mexico and Arizona Territories 3 
(1978). See also C. Ubbelohde, The Vice-Admiralty Courts and the Amer- 
ican Revolution 10 (1960) (In the colonial vice-admiralty courts, "[t]he mar- 
shals' duties were similar to those of a sheriff: serving processes, taking 
custody of goods or people, and executing the decrees of the court"). 



46 OCTOBER TERM, 1985 

STEVENS, J., dissenting 474 U. S. 

judicial district. 6 The primary duty of the marshal, as ex- 
pressed in that Act, was "to attend the district and circuit 
courts when sitting therein, and also the Supreme Court in 
the district in which that court shall sit." In carrying out his 
duty to execute "all lawful precepts directed to him," each 
marshal was given the power to appoint "one or more depu- 
ties," but such deputies were removable at will by the appro- 
priate federal judge. Read against the background of the 
relationship between the judge and the sheriff that had 
existed at common law, it is evident that the statute simply 
assumed that the judge had ample power to call upon the 
marshal for appropriate assistance in carrying out the duties 
of judicial office. 

Although the marshal was subsequently given a variety of 
other duties, including some subject to direction from the 



6 "SEC. 27. And be it further enacted, That a marshal shall be appointed 
in and for each district for the term of four years, but shall be removable 
from office at pleasure, whose duty it shall be to attend the district and 
circuit courts when sitting therein, and also the Supreme Court in the dis- 
trict in which that court shall sit. And to execute throughout the district, 
all lawful precepts directed to him, and issued under the authority of the 
United States, and he shall have power to command all necessary assist- 
ance in the execution of his duty, and to appoint as there shall be occasion, 
one or more deputies, who shall be removable from office by the judge of 
the district court, or the circuit court sitting within the district, at the 
pleasure of either; and before he enters on the duties of his office, he shall 
become bound for the faithful performance of the same, by himself and by 
his deputies before the judge of the district court to the United States, 
jointly and severally, with two good and sufficient sureties, inhabitants and 
freeholders of such district, to be approved by the district judge, in the 
sum of twenty thousand dollars, and shall take before said judge, as shall 
also his deputies, before they enter on the duties of their appointment, the 
following oath of office: 'I, A. B. , do solemnly swear or affirm, that I will 
faithfully execute all lawful precepts directed to the marshal of the district 
of under the authority of the United States, and true returns 

make, and in all things well and truly, and without malice or partiality, per- 
form the duties of the office of marshal (or marshal's deputy, as the case 
may be) of the district of , during my continuance in said office, 

and take only my lawful fees. So help me God.*" 1 Stat. 87. 



PA. BUREAU OF CORRECTION v. U. S. MARSHALS 47 

34 STEVENS, J., dissenting 

Executive Branch, 7 it was not until 1861 that Congress gave 
the Attorney General any authority over United States 
marshals. 8 Furthermore, it was not until 1969 that the 
Attorney General formalized his control over the marshals 
through the establishment of the Office of the Director of 
the Marshals Service. 9 

Under the current statutory framework, the United States 
marshals owe obligations both to the Executive Branch and 
to the Judiciary. Thus, although as the majority points out, 
the Marshals Service is under the control of the Attorney 
General, ante, at 36, n. 1, marshals also remain subject to the 
instructions of the court. 10 Indeed, Congress has consid- 
ered, but not passed, legislation to lodge control of the mar- 
shals exclusively in the Executive Branch. 11 Thus, Congress 
has not yet divested the Judiciary of the control of marshals 
that it has had since 1789, and that it has shared with the 
Attorney General since 1861. 

Throughout our history, the marshals have played an im- 
portant role in the administration of justice. Although their 
most dramatic exploits may be called to mind by references 
to names like Bat Masterson, Wyatt Earp, and David 
Neagle, or to events like the enforcement of civil rights legis- 
lation in the 1960's, the primary assistance to the Federal 
Judiciary provided by the marshals has been in the area of 



7 See U. S. Dept. of Justice, The Office of the United States Marshal 
2-3 (1981). 

8 See Report by the Comptroller General, supra n. 1, at 8 ("On August 
2, 1861, an act of Congress (ch. 37, 12 Stat. 285) placed U. S. attorneys and 
marshals under the general superintendence and direction of the Attorney 
General. The 1861 legislation neither explicitly repealed nor made refer- 
ence to any prior statutes affecting marshals"). 

9 Id., at 10. 

10 See 28 U. S. C. 569(a) ("The United States marshal of each district is 
the marshal of the district court and of the court of appeals when sitting in 
his district, . . . and may, in the discretion of the respective courts, be 
required to attend any session of court"). 

11 See Hearings on H. R. 7039, supra n. 2, at 141. 



48 OCTOBER TERM, 1985 

STEVENS, J., dissenting 474 U. S. 

protection of the trial process, including the courtroom itself, 
and the service of writs issued by the judges. The duty of 
the Marshals Service "to service the federal forum" 12 does, 
however, encompass more than these two specific activities. 

Many aspects of the court's authority over the marshal are 
not set forth in detail in any Act of Congress. Thus, it is not 
the Congress that decided that formal proceedings in our 
courtroom shall be preceded by the Marshal's cry of "Oyez, 
Oyez." Nor is it Congress, or the United States Marshals 
Service, that has decided to use different language to call the 
court to order in other federal courthouses. Decisions of 
that kind concerning the administration of justice in federal 
courts are made by federal judges. 

When a federal judge orders the marshal to open court at a 
particular time, or in a particular way, to provide appropriate 
security for a trial participant, or to escort a prisoner from 
the lockup in the federal building to the courtroom, the court 
is exercising judicial power in a manner that is certainly 
"agreeable to the usages and principles of law" as that phrase 
is used in the All Writs Act. 13 In my judgment, however, 
such an order is not a "writ." The court's authority to issue 
such directives to the marshal is therefore not derived from 
the All Writs Act, but rather is simply one of the powers of 
the federal judicial office that has long been an aspect of the 
relationship between the court and its officers. 

These daily instances of judicial authority over the marshal 
reflect the conventional relationship between the court and 
the marshal. The closeness of the relationship is derived, 
not from an assertion of judicial power over an unwilling mar- 
shal, but from the cooperative nature of the shared mission to 
administer justice. This case represents one of those un- 



12 "The raison d'etre of the Marshal Service is to service the federal 
forum in civil as well as criminal litigation." Ballard v. Spradley, 557 F. 
2d, at 481. 

13 The statute's original and present forms are both quoted by the Court, 
ante, at 40-41, and n. 6. 



PA BUREAU OF CORRECTION v. U. S. MARSHALS 49 

34 STEVENS, J., dissenting 

usual instances in which the ordinary mechanisms for ad- 
dressing disagreements have apparently failed. The major- 
ity holds that the answer must he found in an explicit stat- 
utory delineation of each exercise of judicial authority. In 
my view, the nature of the shared mission of the federal 
courts and the federal marshals should provide the standard 
for resolving the dispute. Thus, the controlling question is 
whether the district court's order is reasonably related to the 
administration of justice and is a sound exercise of judicial 
discretion. 14 

As noted, the Court recognizes that there may be "excep- 
tional circumstances" in which it would be appropriate for a 
trial court to order the marshal to transport a state prisoner 
to a federal courthouse. See ante, at 43. In my judgment, 
even with respect to an ordinary witness, special circum- 
stances might make it appropriate to order the marshal to 
transport the witness to court, even though there may not be 
any common-law writ that would be available in a comparable 
situation. The question whether such an order to a marshal 
constitutes an appropriate exercise of the judge's inherent 
power to control the course of proceedings in a particular 
trial should not, in my opinion, be answered by reference to 
the All Writs Act, but rather by reference to the traditional 
relationship between the court and the marshal and to the 
particular facts that may support the order in a particular 
case. 

In this case, four factors suggest that ordering the federal 
marshal to transport the state prisoners was a sound exercise 
of judicial discretion. First, federal marshals have consider- 



14 Four of the five United States Courts of Appeals that have considered 
federal-court orders to transport state prisoners for their testimony in fed- 
eral htig-ation have viewed the issue as a question of the District Court's 
discretion, and located the authority for that discretion in a specific statu- 
tory provision. See cases cited in n. 3, supra. 



50 OCTOBER TERM, 1985 

STEVENS, J., dissenting 474 U. S. 

able expertise in transporting prisoners to federal courts; 15 
moreover, the marshals acknowledge that they have ample 
authority to transport state, as well as federal, prisoners 
when appropriate. 16 Second, in this instance, the federal 
marshal will be responsible for the prisoners when they are 
in the federal courthouse. 17 Third, federal marshals fre- 
quently house federal prisoners at state and local jails, and, 
indeed, have developed special programs to serve that end. 18 
Fourth, in this case, the District Court, through the Magis- 
trate, specifically found that requiring the State to bear the 
entire responsibility of transporting the state prisoners for 
this federal litigation would impose an unfair financial hard- 
ship upon the Commonwealth of Pennsylvania. 19 This find- 
ing derives support, not only from the particular facts dis- 
closed by this record, 20 but also from the strong federal policy 



15 The marshals transported more than 130,000 prisoners in fiscal year 
1984. Oversight Hearing, supra n.- 2, at 10. 

16 See Tr. of Oral Arg. 38-40. 

17 See ante, at 37, n. 3. 

18 Oversight Hearing, supra n. 2, at 16. 

19 See Magistrate's opinion, App. to Pet. for Cert. 58a-59a. The Magis- 
trate ordered the Marshals Service to transport the prisoners from the 
Philadelphia Detention Center to the federal courthouse in Philadelphia. 
The State, in contrast, remained responsible for transporting the prisoners 
from their prisons in other parts of the State to the Philadelphia Detention 
Center. Id., at 58a. 

20 The Magistrate found that the financial costs imposed by his require- 
ment that the State transport the prisoners to the Philadelphia Detention 
Center were "significant," id., at 59a. Determining that it was "equitable 
and reasonable," ibid., to refrain from imposing additional costs on the 
State, he emphasized that the Marshal already made frequent trips from 
the Philadelphia Detention Center to the federal courthouse because 
federal prisoners were often housed at the Detention Center during their 
federal trials. Id., at 60a. According to the Magistrate's findings, the 
Detention Center is "relatively close" to the federal courthouse. Id., at 
59a-60a. At oral argument, the Federal Government reported that "the 
Marshal typically brings between six and twelve prisoners from the Phila- 
delphia Detention Center to the Federal Courthouse on an average day." 
Tr. of Oral Arg. 28. 



PA. BUREAU OF CORRECTION u. U. S. MARSHALS 51 

34 STEVENS, J., dissenting 

favoring cooperation with the States in the administration of 
civil rights litigation in the federal courts. 21 Thus, I believe 
that it was an appropriate exercise of the District Court's 
discretion to issue the order that it did in this case. 

This is not the kind of confrontation that should arise be- 
tween the marshals and the federal courts. There are a vari- 
ety of mechanisms that should be used before the marshals 
and the courts engage in judicial combat. The district 
judges and the individual marshals should be able to resolve 
most difficulties. If they are unable to, the Circuit Confer- 
ence should be asked to intervene. If the problem is a recur- 
ring, national disagreement, as this issue seems to be, the 
Marshals Service and the Judicial Conference can seek to ad- 
dress it. If these mechanisms fail, however, and if the dis- 
trict court issues an order to the marshal, then the historic 
relationship between the marshal and the courts, reflected in 
the current statutory framework, convinces me that the 
court's order should be upheld if it is reasonably related to 
the administration of justice and is an appropriate exercise of 
the district court's discretion. 

Because I believe that the District Court's order in this 
case was fully consistent with the historic relationship be- 
tween the federal court and the federal marshal, I respect- 
fully dissent. 



21 Cf. Remarks of Warren E. Burger, Chief Justice of the United States, 
at the Dedication of the National Center for State Courts 8 (1978) ("I would 
hope that there will be close cooperation and coordination between our two 
systems close, I repeat, but voluntary. Our experience with the State- 
Federal Councils has shown us the value of cooperation")- 



52 OCTOBER TERM, 1985 

Syllabus 474 U. S. 



HILL v. LOCKHART, DIRECTOR, ARKANSAS 
DEPARTMENT OF CORRECTION 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 
THE EIGHTH CIRCUIT 

No. 84-1103. Argued October 7, 1985 Decided November 18, 1985 

Pursuant to a plea-bargaining agreement, petitioner pleaded guilty in an 
Arkansas court to charges of first-degree murder and theft of property, 
and the court accepted the plea, sentencing him, in accordance with the 
State's recommendations, to concurrent sentences of 35 years for the 
murder and 10 years for the theft. Petitioner later filed a federal 
habeas corpus petition alleging, inter alia, that his guilty plea was 
involuntary by reason of ineffective assistance of counsel because his 
court-appointed attorney had misinformed him that if he pleaded guilty 
he would become eligible for parole after serving one-third of his prison 
sentence, whereas under Arkansas law petitioner, as a "second of- 
fender," was required to serve one-half of his sentence before becoming 
eligible for parole. The District Court denied habeas relief without a 
hearing, and the Court of Appeals affirmed. 

Held: The District Court did not err in declining to hold a hearing on 
petitioner's claim. Pp. 56-60. 

(a) Where a defendant enters a guilty plea upon counsel's advice, the 
voluntariness of the plea depends on whether the advice was within the 
range of competence demanded of attorneys in criminal cases. The two- 
part standard adopted in Strickland v. Washington, 466 U. S. 668, for 
evaluating claims of ineffective assistance of counsel requiring that the 
defendant show that counsel's representation fell below an objective 
standard of reasonableness, and that there is a reasonable probability 
that, but for counsel's unprofessional errors, the result of the proceeding 
would have been different applies to guilty plea challenges based on in- 
effective assistance of counsel. In order to satisfy the second, or "preju- 
dice," requirement, the defendant must show that there is a reasonable 
probability that, but for counsel's errors, he would not have pleaded 
guilty and would have insisted on going to trial. Pp. 56-60. 

(b) In the present case it is unnecessary to determine whether there 
may be circumstances under which erroneous advice by counsel as to 
parole eligibility may be deemed constitutionally ineffective assistance 
of counsel, because petitioner's allegations were insufficient to satisfy 
the "prejudice" requirement. He did not allege in his habeas petition 
that, had counsel correctly informed him about his parole eligibility date, 



HILL u LOCKHART 53 

52 Opinion of the Court 

he would have pleaded not guilty and insisted on going to trial. Nor did 
he allege any special circumstances that might support the conclusion 
that he placed particular emphasis on his parole eligibility in deciding 
whether to plead guilty. P. 60. 
764 F. 2d 1279, affirmed. 

REHNQUIST, J., delivered the opinion of the Court, in which BURGER, 
C. J., and BRENNAN, MARSHALL, BLACKMUN, POWELL, and O'CONNOR, 
JJ., joined. WHITE, J., filed an opinion concurring in the judgment, in 
which STEVENS, J., joined, post, p. 60. 

Jack T. Lassiter, by appointment of the Court, 471 U. S. 
1064, argued the cause and filed a brief for petitioner. 

John Steven Clark, Attorney General of Arkansas, argued 
the cause for respondent. With him on the brief was Alice 
Ann Burns, Deputy Attorney General. 

JUSTICE REHNQUIST delivered the opinion of the Court. 

Petitioner William Lloyd Hill pleaded guilty in the Arkan- 
sas trial court to charges of first-degree murder and theft of 
property. More than two years later he sought federal ha- 
beas relief on the ground that his court-appointed attorney 
had failed to advise him that, as a second offender, he was 
required to serve one-half of his sentence before becoming 
eligible for parole. The United States District Court for the 
Eastern District of Arkansas denied relief without a hearing, 
and the en bane Court of Appeals for the Eighth Circuit 
affirmed by an equally divided court. We granted certiorari 
because of the difference between the result reached in the 
present case and that reached by the Court of Appeals for the 
Fourth Circuit in Strader v. Garrison, 611 F. 2d 61 (1979). 
470 U. S. 1049 (1985). We affirm the judgment of the Court 
of Appeals for the Eighth Circuit because we conclude that 
petitioner failed to allege the kind of prejudice from the alleg- 
edly incompetent advice of counsel that would have entitled 
him to a hearing. 

Under Arkansas law, the murder charge to which peti- 
tioner pleaded guilty carried a potential sentence of 5 to 50 



54 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

years or life in prison, along with a fine of up to $15,000. 
Ark. Stat. Ann. 41-1502(3), 41-901(l)(a), 41-1101(l)(a) 
(1977). Petitioner's court-appointed attorney negotiated a 
plea agreement pursuant to which the State, in return for pe- 
titioner's plea of guilty to both the murder and theft charges, 
agreed to recommend that the trial judge impose concurrent 
prison sentences of 35 years for the murder and 10 years for 
the theft. Petitioner signed a written "plea statement" in- 
dicating that he understood the charges against him and the 
consequences of pleading guilty, that his plea had not been 
induced "by any force, threat, or promise" apart from the 
plea agreement itself, that he realized that the trial judge 
was not bound by the plea agreement and retained the sole 
"power of sentence," and that he had discussed the plea 
agreement with his attorney and was satisfied with his attor- 
ney's advice. The last two lines of the "plea statement," just 
above petitioner's signature, read: "I am aware of every- 
thing in this document. I fully understand what my rights 
are, and I voluntarily plead guilty because I am guilty as 
charged." 

Petitioner appeared before the trial judge at the plea hear- 
ing, recounted the events that gave rise to the charges 
against him, affirmed that he had signed and understood the 
written "plea statement," reiterated that no "threats or 
promises" had been made to him other than the plea agree- 
ment itself, and entered a plea of guilty to both charges. 
The trial judge accepted the guilty plea and sentenced peti- 
tioner in accordance with the State's recommendations. The 
trial judge also granted petitioner credit for the time he had 
already served in prison, and told petitioner that "[y]ou will 
be required to serve at least one-third of your time before 
you are eligible for parole." 

More than two years later petitioner filed a federal habeas 
corpus petition alleging, inter alia, that his guilty plea was 
involuntary by reason of ineffective assistance of counsel be- 
cause his attorney had misinformed him as to his parole eligi- 



HILL u LOCKHART 55 

52 Opinion of the Court 

bility date. According to petitioner, his attorney had told 
him that if he pleaded guilty he would become eligible for pa- 
role after serving one-third of his prison sentence. In fact, 
because petitioner previously had been convicted of a felony 
in Florida, he was classified under Arkansas law as a "second 
offender" and was required to serve one-half of his sen- 
tence before becoming eligible for parole. Ark. Stat. Ann. 
43-2829B(3) (1977). Petitioner asked the United States 
District Court for the Eastern District of Arkansas to reduce 
his sentence to a term of years that would result in his be- 
coming eligible for parole in conformance with his original 
expectations. 

The District Court denied habeas relief without a hearing. 
The court noted that neither Arkansas nor federal law re- 
quired that petitioner be informed of his parole eligibility 
date prior to pleading guilty, and concluded that, even if peti- 
tioner was misled by his attorney's advice, parole eligibility 
"is not such a consequence of [petitioner's] guilty plea that 
such misinformation renders his plea involuntary." The 
court also held that "even if an attorney's advice con- 
cerning such eligibility is not wholly accurate, such advice 
does not render that attorney's performance constitutionally 
inadequate." 

A divided panel of the Court of Appeals for the Eighth Cir- 
cuit affirmed, holding that parole eligibility is a collateral 
rather than a direct consequence of a guilty plea, of which a 
defendant need not be informed, and that the District Court 
did not err in declining to hold a hearing on petitioner's 
claims. 731 F. 2d 568, 570-573 (1984). One judge dis- 
sented, arguing that a hearing should have been held to de- 
termine whether the attorney's alleged mistake in informing 
petitioner about "the applicable law" constituted ineffective 
assistance of counsel and warranted vacating the guilty plea. 
Id., at 573-574 (Heaney, J., dissenting). On rehearing, the 
en bane Court of Appeals affirmed the judgment of the Dis- 



56 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

trict Court by an equally divided court. 764 F. 2d 1279 
(1985). 

The longstanding test for determining the validity of a 
guilty plea is "whether the plea represents a voluntary and 
intelligent choice among the alternative courses of action 
open to the defendant." North Carolina v. Alford, 40O 
IT, S. 25, 31 (1970); see Boykin v. Alabama, 395 U. S. 238, 
242 (1969); Machibroda v. United States, 368 TJ. S. 487, 493 
(1962). Here petitioner does not contend that his plea was 
"involuntary" or "unintelligent" simply because the State 
through its officials failed to supply him with information 
about his parole eligibility date. We have never held that 
the United States Constitution requires the State to furnish a, 
defendant with information about parole eligibility in order 
for the defendant's plea of guilty to be voluntary, and indeed 
such a constitutional requirement would be inconsistent with 
the current rules of procedure governing the entry of guilty 
pleas in the federal courts. See Fed. Rule Crirn. Proc. ll(c); 
Advisory Committee's Notes on 1974 Amendment to Fed. 
Rule Grim. Proc. 11, 18 U. S. C. App., p. 22 (federal courts 
generally are not required to inform defendant about parole 
eligibility before accepting guilty plea). Instead, petitioner 
relies entirely on the claim that his plea was "involuntary" as 
a result of ineffective assistance of counsel because his attor- 
ney supplied him with information about parole eligibility 
that was erroneous. Where, as here, a defendant is repre- 
sented by counsel during the plea process and enters his plea, 
upon the advice of counsel, the voluntariness of the plea 
depends on "whether counsel's advice "was within the range 
of competence demanded of attorneys in criminal cases." 
M'cMann v. Richardson, 397 U. S. 759, 771 (1970). As we 
explained in Tollettv. Henderson, 411 U. S. 258(1973), a de- 
fendant who pleads guilty upon the advice of counsel "majr 
only attack the voluntary and intelligent character of the 
guilty plea by showing that the advice he received from coun- 



HILL v. LOCKHART 57 

52 Opinion of the Court 

sel was not within the standards set forth in McMann. " Id. , 
at 267. 

Our concern in McMann v. Richardson with the quality of 
counsel's performance in advising a defendant whether to 
plead guilty stemmed from the more general principle that all 
"defendants facing felony charges are entitled to the effective 
assistance of competent counsel." 397 U. S., at 771, and 
n. 14; see Reece v. Georgia, 350 U. S. 85, 90 (1955); Powell 
v. Alabama, 287 U. S. 45 (1932). Two Terms ago, in 
Strickland v. Washington, 466 U. S. 668 (1984), we adopted 
a two-part standard for evaluating claims of ineffective as- 
sistance of counsel. There, citing McMann, we reiterated 
that "[w]hen a convicted defendant complains of the ineffec- 
tiveness of counsel's assistance, the defendant must show 
that counsel's representation fell below an objective standard 
of reasonableness." 466 U. S., at 687-688. We also held, 
however, that "[t]he defendant must show that there is a rea- 
sonable probability that, but for counsel's unprofessional er- 
rors, the result of the proceeding would have been different." 
Id., at 694. This additional "prejudice" requirement was 
based on our conclusion that "[a]n error by counsel, even if 
professionally unreasonable, does not warrant setting aside 
the judgment of a criminal proceeding if the error had no 
effect on the judgment." Id., at 691. 

Although our decision in Strickland v. Washington dealt 
with a claim of ineffective assistance of counsel in a cap- 
ital sentencing proceeding, and was premised in part on the 
similarity between such a proceeding and the usual criminal 
trial, the same two-part standard seems to us applicable to 
ineffective-assistance claims arising out of the plea process. 
Certainly our justifications for imposing the "prejudice" re- 
quirement in Strickland v. Washington are also relevant in 
the context of guilty pleas: 

"The government is not responsible for, and hence not 
able to prevent, attorney errors that will result in rever- 
sal of a conviction or sentence. Attorney errors come in 



58 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

an infinite variety and are as likely to be utterly harm- 
less in a particular case as they are to be prejudicial. 
They cannot be classified according to likelihood of caus- 
ing prejudice. Nor can they be defined with sufficient 
precision to inform defense attorneys correctly just what 
conduct to avoid. Representation is an art, and an act 
or omission that is unprofessional in one case may be 
sound or even brilliant in another. Even if a defendant 
shows that particular errors of counsel were unreason- 
able, therefore, the defendant must show that they actu- 
ally had an adverse effect on the defense." Id., at 693. 

In addition, we believe that requiring a showing of "preju- 
dice" from defendants who seek to challenge the validity of 
their guilty pleas on the ground of ineffective assistance of 
counsel will serve the fundamental interest in the finality 
of guilty pleas we identified in United States v. Timmreck, 
441 U. S. 780 (1979): 

"'Every inroad on the concept of finality undermines 
confidence in the integrity of our procedures; and, by in- 
creasing the volume of judicial work, inevitably delays 
and impairs the orderly administration of justice. The 
impact is greatest when new grounds for setting aside 
guilty pleas are approved because the vast majority of 
criminal convictions result from such pleas. Moreover, 
the concern that unfair procedures may have resulted in 
the conviction of an innocent defendant is only rarely 
raised by a petition to set aside a guilty plea/" Id., 
at 784 (quoting United States v. Smith, 440 F. 2d 521, 
528-529 (CA7 1971) (Stevens, J., dissenting)). 

We hold, therefore, that the two-part Strickland v. Wash- 
ington test applies to challenges to guilty pleas based on inef- 
fective assistance of counsel. In the context of guilty pleas, 
the first half of the Strickland v. Washington test is nothing 
more than a restatement of the standard of attorney compe- 
tence already set forth in Tollett v. Henderson, supra, and 



HILL v. LOCKHART 59 

52 Opinion of the Court 

McMann v. Richardson, supra. The second, or "prejudice," 
requirement, on the other hand, focuses on whether counsel's 
constitutionally ineffective performance affected the outcome 
of the plea process. In other words, in order to satisfy the 
"prejudice" requirement, the defendant must show that there 
is a reasonable probability that, but for counsel's errors, he 
would not have pleaded guilty and would have insisted on 
going to trial.* 

In many guilty plea cases, the "prejudice" inquiry will 
closely resemble the inquiry engaged in by courts review- 
ing ineffective-assistance challenges to convictions obtained 
through a trial. For example, where the alleged error of 
counsel is a failure to investigate or discover potentially 
exculpatory evidence, the determination whether the error 
"prejudiced" the defendant by causing him to plead guilty 
rather than go to trial will depend on the likelihood that dis- 
covery of the evidence would have led counsel to change his 
recommendation as to the plea. This assessment, in turn, 
will depend in large part on a prediction whether the evi- 
dence likely would have changed the outcome of a trial. 
Similarly, where the alleged error of counsel is a failure to 
advise the defendant of a potential affirmative defense to the 
crime charged, the resolution of the "prejudice" inquiry will 
depend largely on whether the affirmative defense likely 
would have succeeded at trial. See, e. g., Evans v. Meyer, 
742 F. 2d 371, 375 (CA7 1984) ("It is inconceivable to us ... 
that [the defendant] would have gone to trial on a defense of 
intoxication, or that if he had done so he either would have 
been acquitted or, if convicted, would nevertheless have been 
given a shorter sentence than he actually received"). As we 
explained in Strickland v. Washington, supra, these predic- 



*Several Courts of Appeals have adopted this general approach. See 
Thomas v. Lockhart, 738 F. 2d 304, 307 (CAS 1984); accord, United States 
v. Gavilan, 761 F. 2d 226, 228 (CA5 1985); Beans v. Black, 757 F. 2d 933, 
936-937 (CAS 1985); Mitchell v. Scully, 746 F. 2d 951, 957 (CA2 1984); 
Evans v. Meyer, 742 F. 2d 371, 374-375 (CA7 1984). 



60 OCTOBER TERM, 1985 

WHITE, J., concurring in judgment 474 U. S. 

tions of the outcome at a possible trial, where necessary, 
should be made objectively, without regard for the "idiosyn- 
crasies of the particular decisionmaker." Id., at 695. 

In the present case the claimed error of counsel is errone- 
ous advice as to eligibility for parole under the sentence 
agreed to in the plea bargain. App. 31. We find it unnec- 
essary to determine whether there may be circumstances 
under which erroneous advice by counsel as to parole eligibil- 
ity may be deemed constitutionally ineffective assistance of 
counsel, because in the present case we conclude that peti- 
tioner's allegations are insufficient to satisfy the Strickland 
v. Washington requirement of "prejudice." Petitioner did 
not allege in his habeas petition that, had counsel correctly 
informed him about his parole eligibility date, he would have 
pleaded not guilty and insisted on going to trial. He alleged 
no special circumstances that might support the conclusion 
that he placed particular emphasis on his parole eligibility in 
deciding whether or not to plead guilty. Indeed, petitioner's 
mistaken belief that he would become eligible for parole after 
serving one-third of his sentence would seem to have affected 
not only his calculation of the time he likely would serve if 
sentenced pursuant to the proposed plea agreement, but also 
his calculation of the time he likely would serve if he went to 
trial and were convicted. 

Because petitioner in this case failed to allege the kind 
of "prejudice" necessary to satisfy the second half of the 
Strickland v. Washington test, the District Court did not err 
in declining to hold a hearing on petitioner's ineffective 
assistance of counsel claim. The judgment of the Court of 
Appeals is therefore 

Affirmed. 

JUSTICE WHITE, with whom JUSTICE STEVENS joins, con- 
curring in the judgment. 

The only question properly before the Court is whether 
petitioner is entitled to an evidentiary hearing in a federal 
habeas proceeding where he has alleged that his guilty plea 



HILL v. LOCKHART 61 

52 WHITE, J., concurring in judgment 

entered in state court was involuntary and resulted from 
ineffective assistance of counsel. I write separately to state 
why, under the particular facts of this case, petitioner is not 
entitled to an evidentiary hearing on his habeas claim of inef- 
fective assistance of counsel. 

It is necessary, in my view, to focus on the "plea state- 
ment" signed by petitioner. The statement is a standardized 
form to be completed by defense counsel, in consultation with 
his client, and submitted to the court for consideration. The 
form calls for the insertion of specific information in the ap- 
propriate spaces. Among the items to be included are the 
crime with which the defendant is charged, whether that 
crime is a felony or a misdemeanor, and the maximum sen- 
tence and/or fine defendant could receive if found guilty of 
the offense. There is also a blank space in which to indicate 
the number of prior convictions which the defendant has suf- 
fered. App. 28. 

As the majority indicates, petitioner signed such a written 
"plea statement" indicating that he understood the charges 
against him, the consequences of pleading guilty, and that he 
was "aware of everything in this document." Ante, at 54; 
App. 28. In the space provided for disclosing the number of 
prior convictions, petitioner's form reads "0." Ibid. 

Although it is unclear whether petitioner or his counsel 
filled out the form and inserted this number, there is no alle- 
gation that petitioner told his attorney about his previous 
Florida felony conviction. Indeed, it is incredible that the 
attorney would have filled in the "0" had he known there was 
a prior conviction. Petitioner thus has no factual basis for 
suggesting that his attorney's advice was incompetent, or 
that he was affirmatively misled by counsel as to his earliest 
possible parole eligibility date. Without an allegation that 
the attorney knew of petitioner's prior conviction, but failed 
to inform him of the applicability of the Arkansas "second of- 
fender" statute, there is no reason to provide petitioner with 
an evidentiary hearing on his claim of ineffective assistance 



62 OCTOBER TERM, 1985 

WHITE, J., concurring in judgment 474 U. S. 

of counsel. None of his allegations, if proved, would entitle 
petitioner to relief, as there is nothing in the record to in- 
dicate "that [defense] counsel's representation fell below an 
objective standard of reasonableness." Strickland v. Wash- 
ington, 466 U. S. 668, 687-688 (1984); see also McMann v. 
Richardson, 397 U. S. 759, 771 (1970). 

Were it not for the misinformation in the plea statement 
had petitioner's attorney known of a prior conviction and still 
informed petitioner that he would be eligible for parole after 
serving one-third of his sentence petitioner would be enti- 
tled to an evidentiary hearing and an opportunity to prove 
that counsel's failure to advise of him of the effect of Ark. 
Stat. Ann. 43-2829B(3) (1977) amounted to ineffective 
assistance of counsel. The failure of an attorney to inform 
his client of the relevant law clearly satisfies the first prong 
of the Strickland analysis adopted by the majority, as such 
an omission cannot be said to fall within "the wide range of 
professionally competent assistance" demanded by the Sixth 
Amendment. Strickland v. Washington, supra, at 690. 

Moreover, an examination of the record reveals that peti- 
tioner alleged sufficient facts to "show that there is a reason- 
able probability that, but for counsel's errors, he would not 
have pleaded guilty and would have insisted on going to 
trial." Ante, at 59. In the first two paragraphs of his ha- 
beas petition, petitioner alleged, in pertinent part, as follows: 

"I agreed to plead guilty with the understanding that 
I'd get 35 yrs. for 1st degree murder & 10 years concur- 
rent for theft of property, and that I would only have 1/3 
of my sentence to do, less good time. . . . 

"My lawyer told me that a plea negotiation was bind- 
ing to both sides and that the Court would impose the 
sentence agreed to by me and the prosecutor. I did not 
know that the Court could deviate from the concessions 
agreed to without informing me, nor that it could say to 
do 1/3 minimum enstead [sic] of just 1/3, until parole." 
App. 8-9. 



HILL u LOCKHART 63 

52 WHITE, J., concurring in judgment 

Later, petitioner made the following objections to the Magis- 
trate's proposed order: 

"Petitioner's first two arguments should be restated to 
allege that his guilty plea was involuntary in that his 
counsel improperly advised him as to his earliest possible 
parole eligibility date and as a result of that incorrect 
advice the Petitioner did not fully understand the conse- 
quences of his plea." Id., at 40. 

"The Petitioner contends that his counsel's erroneous 
advice concerning his potential parole eligibility date was 
a critical factor in his decision to enter a guilty plea. It 
was an important consequence of his plea which he did 
not understand." Id., at 41-42. 

"It is Petitioner's contention that he would not have 
entered the negotiated plea had his attorney correctly 
advised him that he would be required to serve one-half 
of his sentence less good time under Arkansas law." 
Id., at 46-47. 

In sum, because petitioner failed to allege that his attorney 
knew about his prior conviction but failed to inform him of the 
applicability of Ark. Stat. Ann. 43-2829B(3) (1977), I find 
that petitioner did not allege sufficient facts to entitle him 
to an evidentiary hearing on his ineffective-assistance-of- 
counsel claim. Had petitioner made such an allegation, how- 
ever, he would be entitled to such a hearing, as he clearly 
alleged more than sufficient facts that, if proved, would show 
that he was prejudiced by his counsel's error, and thus enti- 
tled to habeas relief. 



64 OCTOBER TERM, 1985 

Syllabus 474 U. S. 



GREEN ET AL. v. MANSOUR, DIRECTOR, MICHIGAN 
DEPARTMENT OF SOCIAL SERVICES 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 
THE SIXTH CIRCUIT 

No. 84-6270. Argued October 7, 1985 Decided December 3, 1985 

Petitioner recipients of benefits under the federal Aid to Families With 
Dependent Children (AFDC) program brought class actions in Federal 
District Court against respondent Director of the Michigan Department 
of Social Services. They claimed that respondent's policies of prohibit- 
ing the deduction of child care costs and requiring the inclusion of step- 
parents' income for purposes of calculating earned income, thereby 
determining eligibility for and the amount of AFDC benefits, violated 
applicable federal law. Petitioners sought an injunction, a declaratory 
judgment, and "notice relief." While the actions were pending, Con- 
gress amended the relevant federal statute to expressly require States 
to deduct child care expenses and to include stepparents' income. 
Granting respondent's motions to dismiss in each case, the District Court 
held that the changes in federal law rendered moot the claims for pro- 
spective relief, that the remaining claims for declaratory and "notice 
relief" related solely to past violations of federal law, and that such retro- 
spective relief was barred by the Eleventh Amendment. The Court of 
Appeals affirmed in a consolidated appeal. 

Held: 

1. Petitioners are not entitled to "notice relief." Since there is no 
continuing violation of federal law to enjoin, and therefore no valid in- 
junction to which notice could attach, the notice cannot be justified as a 
mere case-management device that is ancillary to a judgment awarding 
valid prospective relief. Quern v. Jordan, 440 U. S. 332, distinguished. 
Absent these conditions, the Eleventh Amendment limitation on the 
Art. Ill power of federal courts prevents them from ordering "notice 
relief" against States because it is not the type of remedy designed to 
prevent ongoing violations of supreme federal law. Pp. 6872. 

2. Nor are petitioners entitled to a declaratory judgment that re- 
spondent violated federal law in the past. Where there is no claimed 
continuing violation of federal law or any threat of future violation, a 
declaratory judgment is inappropriate because its purpose could only be 
to provide a federal judgment on the issue of liability with the hope that 
it would be res judicata in state-court proceedings, leaving to the state 
courts only a form of accounting proceeding whereby damages or restitu- 



GREEN v. MANSOUR 65 

64 Opinion of the Court 

tion would be computed. This would be an inappropriate exercise of 
federal judicial power because it would have much the same effect as an 
award of damages or restitution, which kinds of relief against States are 
prohibited by the Eleventh Amendment. Pp. 72-73. 
742 F. 2d 277, affirmed. 

REHNQUIST, J., delivered the opinion of the Court, in which BURGER, 
C. J., and WHITE, POWELL, and O'CONNOR, JJ., joined. BRENNAN, J., 
filed a dissenting opinion, in which MARSHALL, BLACKMUN, and STEVENS, 
JJ., joined, post, p. 74. MARSHALL, J., filed a dissenting opinion, in 
which BRENNAN and STEVENS, JJ., joined, post, p. 79. BLACKMUN, J., 
filed a dissenting opinion, in which BRENNAN, MARSHALL, and STEVENS, 
JJ., joined, post, p. 81. 

William Burnham argued the cause for petitioners. With 
him on the briefs was Paul D. Reingold. 

Louis J. Caruso, Solicitor General of Michigan, argued the 
cause for respondent. With him on the brief were Thomas 
L. Casey, Erica Weiss Marsden, and Robert N. Rosenberg, 
Assistant Attorneys General. 

JUSTICE REHNQUIST delivered the opinion of the Court. 

Petitioners brought two separate class actions in the 
United States District Court for the Eastern District of 
Michigan against respondent Director of the Michigan De- 
partment of Social Services, claiming that respondent's cal- 
culations of benefits under the federal Aid to Families With 
Dependent Children (AFDC) program violated certain pro- 
visions of that federal law. Before a final determination on 
the merits of either case could be made, Congress amended 
the relevant statutory provisions. It is undisputed that re- 
spondent's calculations thereafter have conformed to federal 
law. Notwithstanding this fact, petitioners claim that they 
were entitled to have the District Court award them both 
"notice relief" and a declaration that respondent's prior con- 
duct violated federal law. The District Court denied peti- 
tioners both forms of relief, and the Court of Appeals for 
the Sixth Circuit affirmed. We now affirm the judgment of 
the Court of Appeals, holding that the Eleventh Amendment 



66 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

to the United States Constitution and applicable principles 
governing the issuance of declaratory judgments forbid the 
award of either form of relief. 

The two class actions involved in this case were brought on 
behalf of recipients of benefits disbursed under the AFDC 
program. See 42 U. S. C. 601-615. The AFDC program 
uses a person's earned income in determining eligibility for, 
and the amount of, benefits. See 602. The complaints 
alleged that certain of respondent's policies and regulations 
violated 42 U. S. C. 1983 by inflating their respective class 
members' earned income and thereby causing a reduction or 
termination of AFDC benefits contrary to the applicable fed- 
eral law. 

One putative class challenged respondent's policy of pro- 
hibiting the deduction of child care costs in the calculation of 
earned income. While the case was pending in the District 
Court, Congress changed the relevant provisions of the 
AFDC program to expressly require participating States to 
deduct child care expenses up to a specified amount. Re- 
spondent thereafter brought state policy into compliance 
with this amendment and began deducting child care ex- 
penses in the calculation of earned income. There is no claim 
that respondent's current child care deduction policy violates 
federal law. 

The other putative class challenged respondent's policy of 
automatically including stepparents' income in the calculation 
of earned income. The District Court issued a preliminary 
injunction preventing respondent from enforcing its auto- 
matic inclusion policy. But again, while the matter was 
pending on the merits, Congress amended the relevant sec- 
tion of the AFDC program to expressly require States to in- 
clude stepparent income in the calculation of earned income. 
The parties thereafter stipulated that the District Court 
should terminate its preliminary injunction as of the effective 
date of the amendment. Here, too, there is no claim that re- 
spondent has not complied with federal law since that time. 



GREEN u MANSOUR 67 

64 Opinion of the Court 

The District Court granted respondent's motions to dis- 
miss in each case. It held in each that the changes in federal 
law rendered moot the claims for prospective relief, and that 
the remaining claims for declaratory and notice relief related 
solely to past violations of federal law. Such retrospective 
relief, the court determined, is barred by the Eleventh 
Amendment. 

The Court of Appeals affirmed in a consolidated appeal. 
Banas v. Dempsey, 742 F. 2d 277 (1984). It agreed that the 
changes in federal law rendered moot the claims for prospec- 
tive relief. Id. , at 281-283. It also agreed that because the 
sought-after notice and declaratory relief was retrospective 
in nature, the relief was barred by Edelman v. Jordan, 415 
U. S. 651 (1974). 742 F. 2d, at 286-288. It reasoned that 
when there is no prospective relief to which notice can be an- 
cillary, even notice of the sort approved in Quern v. Jordan, 
440 U. S. 332 (1979), cannot escape the Eleventh Amend- 
ment bar. 742 F. 2d, at 287-288. Declaratory relief is simi- 
larly barred under such circumstances, it explained, because 
such relief could relate solely to past violations of federal law. 
Id., at 288. 

We granted certiorari to resolve a conflict in the Circuits 
over whether federal courts may order the giving of notice of 
the sort approved in Quern v. Jordan, supra, or issue a de- 
claratory judgment that state officials violated federal law in 
the past when there is no ongoing violation of federal law. 
The decision by the Court of Appeals in this case agrees with 
the result in Colbeth v. Wilson, 554 F. Supp. 539 (Vt. 1982), 
aff 'd, 707 F. 2d 57 (CA2 1983) (per curiam), but it conflicts 
with the decisions in Appleyard v. Wallace, 754 F. 2d 955, 
959-963 (CA11 1985); Randall v. Lukhard, 729 F. 2d 966 
(CA4) (en bane), cert, denied, 469 U. S. 872 (1984); Beltran 
v. Myers, 701 F. 2d 91, 94 (CA9) (per curiam), cert, denied, 
462 U. S. 1134 (1983); and Silva v. Vowell, 621 F. 2d 640, 
650-654 (CA5 1980), which all allowed notice relief even 
though changes in state policy or federal law rendered moot 



68 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

any claim for injunctive relief stopping ongoing violations of 
federal law. We now affirm the decision of the Court of 
Appeals. 

The Eleventh Amendment confirms that "the fundamental 
principle of sovereign immunity limits the grant of judicial 
authority in Art. III." Pennhurst State School & Hospital 
v. Halderman, 465 U. S. 89, 98 (1984). Because of the Elev- 
enth Amendment, States may not be sued in federal court 
unless they consent to it in unequivocal terms or unless Con- 
gress, pursuant to a valid exercise of power, unequivocally 
expresses its intent to abrogate the immunity. Id., at 99. 
The landmark case of Ex parte Young, 209 U. S. 123 (1908), 
created an exception to this general principle by asserting 
that a suit challenging the constitutionality of a state official's 
action in enforcing state law is not one against the State. 
Id., at 159-160. The theory of Young was that an uncon- 
stitutional statute is void, id., at 159, and therefore does not 
"impart to [the official] any immunity from responsibility to 
the supreme authority of the United States." Id., at 160. 
Young also held that the Eleventh Amendment does not 
prevent federal courts from granting prospective injunctive 
relief to prevent a continuing violation of federal law. Id. , 
at 155156, 159. We have refused to extend the reasoning 
of Young, however, to claims for retrospective relief. See 
Pennhurst, supra, at 102-103; Quern v. Jordan, supra, at 
337; Edelman v. Jordan, supra, at 668. 

Both prospective and retrospective relief implicate Elev- 
enth Amendment concerns, but the availability of prospec- 
tive relief of the sort awarded in Ex parte Young gives life 
to the Supremacy Clause. Remedies designed to end a con- 
tinuing violation of federal law are necessary to vindicate the 
federal interest in assuring the supremacy of that law. See 
Pennhurst, supra, at 102. See also Milliken v. Bradley, 433 
U. S. 267 (1977). But compensatory or deterrence interests 
are insufficient to overcome the dictates of the Eleventh 
Amendment. Petitioners concede that any claim they might 



GREEN u MANSOUR 69 

64 Opinion of the Court 

have had for the specific type of injunctive relief approved in 
Ex parte Young was rendered moot by the amendments to 
the AFDC program. They nevertheless seek "notice relief" 
of the type approved in Quern v. Jordan, arguing that notice 
is an independent form of prospective relief protected against 
the Eleventh Amendment bar by Ex parte Young. In tak- 
ing this position, we think petitioners misconceive our Elev- 
enth Amendment jurisprudence and our decision in Quern. 
Quern was the last chapter in the litigation that initially 
gave rise to Edelman v. Jordan, supra. The plaintiffs in 
that litigation challenged a State's administration of the 
federal-state program for Aid to the Aged, Blind, or Disabled 
(AABD). The District Court issued a declaratory judgment 
that current state regulations governing the administration 
of the program violated federal regulations then in effect. 1 
It therefore permanently enjoined the state officials from 
continuing to violate federal law. Although the language of 
the declaratory judgment was no broader than necessary to 
complement the injunction against the current violation of 
federal law, it implied that the defendants had violated fed- 
eral law in the past. The District Court therefore issued 
a second injunction ordering the defendants to release and 
remit all AABD benefits that they had wrongfully withheld 
on account of their past violations of federal law. The Court 
of Appeals affirmed, Jordan v. Weaver, 472 F. 2d 985 (CAT 
1973), but we reversed, holding that the Eleventh Amend- 
ment barred the injunction ordering retroactive benefits be- 
cause it was effectively an award of money damages for past 



1 The declaratory judgment was embodied in paragraph 4 of the District 
Court's judgment, which stated: 

"Illinois Categorical Assistance Manual, Section 4004, and subsections 
thereunder, as applied to applicants for AABD are invalid insofar as they 
are inconsistent with the requirements of [federal law as construed in] 
paragraphs 1 and 2." Jordan v. Weaver, No. 71 C 70, p. 3 (ND 111., Mar. 
15, 1972) (emphasis added). 



70 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

violations of federal law. Edelman v. Jordan, 451 U. S., at 
666-669. 

On remand, the District Court ordered the defendants to 
send notice to the plaintiff class informing individual class 
members that they were wrongfully denied benefits in a par- 
ticular amount, together with a returnable form for filing 
claims with the appropriate state agency. The Court of 
Appeals reversed, holding that the District Court's proposed 
notice violated the Eleventh Amendment because it would 
effectively result in a federal adjudication of state liability for 
past violations of federal law. Jordan v. Trainor, 563 F. 2d 
873, 875 (CA7 1977) (en bane). At the same time, the Court 
of Appeals determined that the Eleventh Amendment would 
not bar an order requiring state officials to send "a mere 
explanatory notice to applicants advising them that there is 
a state administrative procedure available if they desire to 
have the state determine whether or not they may be eligible 
for past benefits." Ibid. 

We affirmed in Quern v. Jordan, 440 U. S. 332 (1979), 
holding that although Edelman v. Jordan, supra, retained 
continuing vitality after Monell v. New York City Dept. 
of Social Services, 436 U. S. 658 (1978), see 440 U. S., at 
338-345, the specific notice order approved by the Court of 
Appeals did not violate the Eleventh Amendment. Id., at 
346-349. We explained that the appellate court's particular 
notice order fell "on the Ex parte Young side of the Eleventh 
Amendment line rather than on the Edelman side." Id., at 
347. We reasoned that "unlike [the notice] ordered by the 
District Court, [this notice was] more properly viewed as 
ancillary to the prospective relief already ordered by the 
court," id., at 349, and it did no more than "simply infor[m] 
class members that their federal suit is at an end, that the 
federal court can provide them with no further relief, and 
that there are existing state administrative procedures which 
they may wish to pursue." Ibid. We also stressed that the 
state defendants had not objected to the expense of providing 



GREEN v. MANSOUR 71 

64 Opinion of the Court 

such notice, state agencies rather than federal courts would 
be the final arbiters of whether retroactive payments would 
be ordered, and the notice would not automatically lead to 
any particular action. Id. , at 347-348. 

Our review of the long, drawn-out Jordan litigation con- 
vinces us that neither the Court of Appeals nor this Court 
conceived of the requested notice allowed in that case to be 
an independent form of relief. We simply held that the spe- 
cific order fell within the Ex parte Young exception to the 
Eleventh Amendment principle of sovereign immunity be- 
cause it was ancillary to a valid injunction previously granted 
and was sufficiently narrow to retain its character as a mere 
case-management device. The notice in Quern v. Jordan did 
nothing other than inform a diverse and partially victorious 
class concerning the extent of the judgment in its favor, 
cf. Fed. Rule Civ. Proc. 23(d)(2), and that the federal courts 
could do no more for them. There was no suggestion that 
the notice itself would bind state officials in any way, or that 
such notice would be routinely available as a form of relief in 
other cases. Because "notice relief" is not the type of rem- 
edy designed to prevent ongoing violations of federal law, the 
Eleventh Amendment limitation on the Art. Ill power of fed- 
eral courts prevents them from ordering it as an independent 
form of relief. 

Measured by the standards of Quern, however, a request 
for a limited notice order will escape the Eleventh Amend- 
ment bar if the notice is ancillary to the grant of some other 
appropriate relief that can be "noticed." Because there is 
no continuing violation of federal law to enjoin in this case, 
an injunction is not available. Therefore, notice cannot be 
justified as a mere case-management device that is ancillary 
to a judgment awarding valid prospective relief. Petitioners 
argue, however, that they are entitled to a declaratory judg- 
ment that respondent violated federal law in the past. Only 
if petitioners are correct in this assertion can they properly 



72 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

claim a right to "notice" of a judgment under the principles of 
Quern. 

The Declaratory Judgment Act of 1934, 28 U. S. C. 2201, 
permits a federal court to declare the rights of a party 
whether or not further relief is or could be sought, and we 
have held that under this Act declaratory relief may be avail- 
able even though an injunction is not. Steffel v. Thompson, 
415 U. S. 452, 462 (1974). But we have also held that the 
declaratory judgment statute "is an enabling Act, which 
confers a discretion on the courts rather than an absolute 
right upon the litigant." Public Service Comm'n v. Wycoff 
Co., 344 U. S. 237, 241 (1952). The propriety of issuing a 
declaratory judgment may depend upon equitable consider- 
ations, see Samuels v. Mackell, 401 U. S. 66, 73 (1971), and 
is also "informed by the teachings and experience concerning 
the functions and extent of federal judicial power." Wycoff 9 
supra, at 243; cf. Younger v. Harris, 401 U. S. 37, 44-45 
(1971). 

In applying these principles, we have held that a declara- 
tory judgment is not available in a number of instances. In 
Great Lakes Co. v. Huffman, 319 U. S. 293 (1943), we held 
that a declaratory judgment was not available to obtain a 
determination of the constitutionality of a state tax even 
though the relevant federal statute prohibited federal courts 
only from issuing injunctions against the collection of such 
taxes. Id., at 299. We held in Samuels v. Mackell, supra, 
that a declaratory judgment declaring a state criminal statute 
unconstitutional was unavailable where it would have much 
the same effect as an injunction prohibiting enforcement of 
the statute, and the latter was barred by traditional princi- 
ples of equity, comity, and federalism. Id., at 69-73. In 
Wycoff, we held that it was inappropriate to issue a declara- 
tory judgment deciding whether the plaintiff's business was 
interstate commerce and therefore potentially immune from 
state regulation. 344 U. S., at 244, 247-249. We reasoned 
that if the federal judgment were res judicata in subsequent 



GREEN v. MANSOUR 73 

64 Opinion of the Court 

state proceedings, then the federal court will have lifted the 
case out of the state court before the state agency or court 
can hear it. Id., at 247. On the other hand, if the federal 
judgment would not have such an effect, then it would 
"serv[e] no useful purpose as a final determination of rights." 
Ibid. 

We think that these cases demonstrate the impropriety of 
the issuance of a declaratory judgment in this case. There is 
no claimed continuing violation of federal law, and therefore 
no occasion to issue an injunction. Nor can there be any 
threat of state officials violating the repealed law in the fu- 
ture. Cf. Steffel v. Thompson, supra, at 454. There is a 
dispute about the lawfulness of respondent's past actions, but 
the Eleventh Amendment would prohibit the award of money 
damages or restitution if that dispute were resolved in favor 
of petitioners. We think that the award of a declaratory 
judgment in this situation would be useful in resolving the 
dispute over the past lawfulness of respondent's action only if 
it might be offered in state-court proceedings as res judicata 
on the issue of liability, leaving to the state courts only a form 
of accounting proceeding whereby damages or restitution 
would be computed. But the issuance of a declaratory judg- 
ment in these circumstances would have much the same ef- 
fect as a full-fledged award of damages or restitution by the 
federal court, the latter kinds of relief being of course prohib- 
ited by the Eleventh Amendment. The teachings of Huff- 
man, Samuels, and Wycojf are that a declaratory judgment 
is not available when the result would be a partial "end run" 
around our decision in Edelman v. Jordan, 415 U. S. 651 
(1974). 2 



2 If, of course, petitioners would make no claim that the federal declara- 
tory judgment was res judicata in later commenced state proceedings, the 
declaratory judgment would serve no purpose whatever in resolving the 
remaining dispute between the parties, and is unavailable for that reason. 
Wycoff, 344 U. S., at 247. 



74 OCTOBER TERM, 1985 

BRENNAN, J. , dissenting 474 U. S. 

JUSTICE BRENNAN'S dissent contends that because the 
injunction and declaratory judgment in Quern implied past 
violations of federal law, declaratory judgments expressly 
adjudicating the question of past violations are routinely 
available. We think he is mistaken. The District Court's 
injunction and declaratory judgment against continuing and 
future violations of federal law in Quern implied that similar 
violations had occurred in the past because neither state nor 
federal policy had varied through the time of judgment. 
Here, by contrast, there are no present violations under the 
amended statute, and even if there were, an injunction 
against them would not imply that past practice violated the 
repealed federal law. Thus, a declaratory judgment that re- 
spondent violated federal law in the past would have to stand 
on its own feet as an appropriate exercise of federal jurisdic- 
tion in this case. This it cannot do for the reasons we have 
previously stated. 

We hold that the District Court was correct in concluding 
that neither the "notice" proposed by petitioners nor a de- 
claratory judgment should have issued in a case of this type. 
The judgment of the Court of Appeals is therefore 

Affirmed. 

JUSTICE BRENNAN, with whom JUSTICE MARSHALL, 
JUSTICE BLACKMUN, and JUSTICE STEVENS join, dissenting. 

Last Term, in my dissent in Atascadero State Hospital v. 
Scanlon, 473 U. S. 234, 257 (1985), I explained at length 
my view that the Court's Eleventh Amendment doctrine 
"lacks a textual anchor [in the Constitution], a firm historical 
foundation, or a clear rationale." Today's decision demon- 
strates that the absence of a stable analytical structure un- 
derlying the Court's Eleventh Amendment jurisprudence 
produces inconsistent decisions. 

In Quern v. Jordan, 440 U. S. 332 (1979), the State of 
Illinois contended that the notice relief ordered by the Court 
of Appeals, which was identical in all significant respects to 



GREEN v. MANSOUR 75 

64 BRENNAN, J. , dissenting 

that requested in the instant case, 1 offended the Eleventh 
Amendment because "giving the proposed notice [would] lead 
inexorably to the payment of state funds for retroactive 
benefits and therefore it, in effect, amounts to a monetary 
award." Id., at 347. JUSTICE REHNQUIST, writing for the 
Court, rejected that argument: 

"[T]he chain of causation which petitioner seeks to estab- 
lish is by no means unbroken; it contains numerous miss- 
ing links, which can be supplied, if at all, only by the 
State and members of the plaintiff class and not by a 
federal court. The notice approved by the Court of 
Appeals simply apprises plaintiff class members of the 
existence of whatever administrative procedures may al- 
ready be available under state law by which they may re- 
ceive a determination of eligibility for past benefits. . . . 
The mere sending of that notice does not trigger the 
state administrative machinery. Whether a recipient of 
notice decides to take advantage of those available state 
procedures is left completely to the discretion of that 
particular class member; the federal court plays no role 
in that decision. And whether or not the class member 
will receive retroactive benefits rests entirely with the 



1 Green asked the District Court to order that notices be sent out to 
other AFDC recipients advising them of the outcome of the litigation, i. e., 
of the declaratory judgment and telling them that state administrative pro- 
ceedings might be available to them to obtain retroactive benefits. App. 
132. Similarly, the notice approved in Quern v. Jordan, 440 U. S. , at 349, 
"mform[ed] class members that their federal suit [was] at an end, that the 
federal court [could] provide them with no further relief, and that there 
[were] existing state administrative procedures which they may wish to 
pursue." The class members were "'given no more . . . than what they 
would have gathered by sitting in the courtroom/ " Ibid., quoting Jordan 
v. Trainor, 563 F. 2d 873, 877-878 (CA7 1977). And, of course, what class 
members would have gathered by sitting in the courtroom was the sub- 
stantive outcome of the litigation a declaration that Illinois officials had 
violated federal law. 



76 OCTOBER TERM, 1985 

BRENNAN, J., dissenting 474 U. S. 

State, its agencies, courts, and legislature, not with the 
federal court." Id., at 347-348. 

In the present case, the Court turns around and accepts 
the argument made by the State of Illinois in Quern with 
respect to Green's request for declaratory relief. JUSTICE 
REHNQUIST states that declaratory relief is barred by the 
Eleventh Amendment because 

"the award of a declaratory judgment in this situation 
would be useful in resolving the dispute over the past 
lawfulness of respondent's action only if it might be of- 
fered in state-court proceedings as res judicata on the 
issue of liability, leaving to the state courts only a form 
of accounting proceeding whereby damages or restitu- 
tion would be computed. But the issuance of a declara- 
tory judgment in these circumstances would have much 
the same effect as a full-fledged award of damages or 
restitution by the federal court, the latter kinds of relief 
being . . . prohibited by the Eleventh Amendment." 
Ante, at 73. 

What the Court ignores is that the declaration by the Dis- 
trict Court in the Quern litigation that Illinois officials had 
violated federal law, combined with the notice relief we sanc- 
tioned, would have yielded the same result. 2 The Court fails 
to explain adequately why declaratory relief should be ana- 
lyzed differently than notice relief was in Quern, since use of 
the declaratory judgment in the State's courts is also left 
completely to the discretion of individual notice recipients 
and the award of retroactive benefits "rests entirely with the 
State, its agencies, courts, and legislature, not with the fed- 
eral court." Quern, supra, at 348. 

2 It is not enough to distinguish the cases to observe that the notice 
relief in Quern was "ancillary" to a prospective injunction because the 
prospective" injunction had been moot for three years before the Court 
of Appeals fashioned the notice relief and for five years before this Court 
approved it Congress abolished the federal program at issue in Quern in 
1974. 



GREEN u MANSOUR 77 

64 BRENNAN, J., dissenting 

By way of explication, the Court retreats to the position 
that federal courts may grant relief prospectively, that is, 
against ongoing and future violations of federal law, but not 
retroactively, that is, against past violations of federal law. 
Basically what the Court is doing, as it admits in this case, 
is balancing the Eleventh Amendment and the Supremacy 
Clause. Ante, at 68. If relief is sought against continuing 
violations, the Court finds that the Supremacy Clause out- 
weighs the Eleventh Amendment; but if relief is requested 
against past violations, the Court determines that the Elev- 
enth Amendment outweighs the Supremacy Clause. The 
Court cites no constitutional authority for this balancing test 
and has not offered, and I suspect cannot offer, a satisfactory 
analytical foundation for it. 

Furthermore, I strenuously disagree with the Court's sug- 
gestion that the balance it has struck sufficiently protects the 
supremacy of federal law. It may be true that the availabil- 
ity of prospective relief of the sort awarded in Ex parte 
Young, 209 U. S. 123 (1908), gives, as the Court puts it, some 
"life" to the Supremacy Clause. Ante, at 68. That this rule 
saves the Clause from being completely moribund does not, 
however, alter the reality that it is insufficient to ensure that 
federal law is paramount. From this day forward, at least 
with regard to welfare programs, States may refuse to follow 
federal law with impunity, secure in the knowledge that all 
they need do to immunize themselves from accountability in 
federal courts is to conform their policies to federal law on the 
eve of judgment in a suit brought to secure "prospective" in- 
junctive relief. During the period of noncompliance, States 
save money by not paying benefits according to the criteria 
established by federal law, 8 while needy individuals desig- 



3 AFDC is a matching benefits program. States pay up to 50 percent of 
their benefit payments, the Federal Government pays the remainder. 
House Committee on Ways and Means, Background Material and Data on 
Programs within the Jurisdiction of the Committee on Ways and Means, 
98th Cong., 2d Sess., 292 (Comm. Print 1984). 



78 OCTOBER TERM, 1985 

BRENNAN, J., dissenting 474 U. S. 

nated by Congress as the beneficiaries of welfare programs 
are cheated of their federal rights. Once again, the Court's 
doctrine "require[s] the federal courts to protect States that 
violate federal law from the legal consequences of their con- 
duct." Atascadero, 473 U. S., at 258. Surely the Suprem- 
acy Clause requires a different result. 

The foregoing reveals the fundamental incoherence of the 
Court's Eleventh Amendment jurisprudence. Before the 
Court can develop a coherent Eleventh Amendment doctrine, 
I believe that it must reassess a long line of our precedents, 
beginning with Hans v. Louisiana, 134 U. S. 1 (1890), and 
culminating in today's decision, that have perpetuated an 
erroneous interpretation of the Eleventh Amendment. As 
I demonstrated in Atascadero, supra, the Court's constitu- 
tional doctrine of the sovereign immunity of States rests on a 
mistaken historical premise. Because I treated the subject 
exhaustively in that case, I will only restate my conclusions 
here. Recent scholarship indicates that the Framers never 
intended to constitutionalize the doctrine of state sovereign 
immunity; consequently the Eleventh Amendment was not 
an effort to reestablish, after Chisholm v. Georgia, 2 Dall. 
419 (1793), a limitation on federal judicial power contained 
in Article III. Nor, given the limited terms and context 
in which the Eleventh Amendment was drafted, could the 
Amendment's narrow and technical language be understood 
to have instituted a broad new limitation on the federal judi- 
cial power in cases "arising under" federal law whenever an 
individual attempts to sue a State. Atascadero, 473 U. S. , at 
258-259. Rather, as the historical records and the language 
of the Constitution reveal, the Amendment was intended 
simply to remove federal-court jurisdiction over suits against 
a State where the basis for jurisdiction was that the plaintiff 
was a citizen of another State or an alien suits which result 
in the abrogation of the state law of sovereign immunity in 
state-law causes of action. Id. , at 259-280. 



GREEN DL MANSOUR 79 

64 MARSHALL, J., dissenting 

Because the disputes in the instant case are between citi- 
zens and their own State and because a federal question is the 
source of federal-court jurisdiction, the Eleventh Amend- 
ment, properly construed, is no bar to petitioners' suits. 

I respectfully dissent. 

JUSTICE MARSHALL, with whom JUSTICE BRENNAN and 
JUSTICE STEVENS join, dissenting. 

I concur in JUSTICE BRENNAN'S and JUSTICE BLACKMUN'S 
dissents. I contribute to this proliferation of opinions only to 
add a few words as to why, even under the view of the Elev- 
enth Amendment accepted by the majority in Atascadero 
State Hospital v. Scanlon, 473 U. S. 234 (1985), the major- 
ity reaches an incorrect result in this case. 



JUSTICE BRENNAN'S opinion cogently explains how the 
decision of the majority today repudiates Quern v. Jordan, 
440 U. S. 332 (1979). The Court in that case did not approve 
notice relief as a "mere case-management device," ante, 
at 71, nor does the majority suggest how informing class 
members of state administrative procedures serves a case- 
management function in federal-court litigation. Rather, 
the Quern Court, explicitly posing the question whether "the 
modified notice contemplated by the Seventh Circuit consti- 
tute[s] permissible prospective relief or a 'retroactive award 
which requires the payment of funds from the state treas- 
ury,'" concluded that "this relief falls on the Ex parte Young 
side of the Eleventh Amendment line rather than on the 
Edelman side." Quern, supra, at 346-347. 

II 

In abandoning the result it reached six years ago, the 
majority misapplies its own Eleventh Amendment jurispru- 
dence. The majority states that there are two kinds of rem- 
edies that can be sought against a state officer: prospective 
relief "designed to end a continuing violation of federal law," 



80 OCTOBER TERM, 1985 

MARSHALL, J., dissenting 474 U. S. 

and retrospective relief serving mere "compensatory or de- 
terrence interests." Ante, at 68. Only in the former class 
of relief, it concludes, do the federal interests involved out- 
weigh the Eleventh Amendment interests implicated by a 
suit against a state officer in his official capacity.* "Pro- 
spective" and "retrospective" labels, however, should be ir- 
relevant to analysis of this case. The notice relief at issue 
here imposes no significant costs on the State, creates no 
direct liabilities against the State, and respects the institu- 
tions of state government. See Quern, supra, at 347348. 
This Court has never held that the Eleventh Amendment 
poses any bar to such relief. Indeed, notice of the availabil- 
ity of possible relief through existing state administrative 
remedies, where the state agency and state courts would be 
the sole arbiters of what relief would be granted, assists in 
the vindication of state law by informing class members that 
they may have causes of action under that law. In the Elev- 
enth Amendment balance set up by the majority opinion, it is 
thus hard to see what weight, if any, exists on the State's 
side of the scale, and why that weight should overcome the 
interest in vindicating federal law. 



*The distinction is hardly so neat as the majority implies. The major- 
ity cites Milliken v. Bradley , 433 U. S. 267 (1977), as exemplifying per- 
missible injunctive relief. Ante, at 68. That case involved a continuing 
federal duty to remedy the effects of past de jure segregation; the Court 
upheld against Eleventh Amendment attack an order that state officials 
pay costs attributable to a program "designed ... to restore the schoolchil- 
dren of Detroit to the position they would have enjoyed absent constitu- 
tional violations by state and local officials," 433 U. S. , at 281, characteriz- 
ing the relief both as "prospectiv[e]" and as "compensatory," id. , at 290. 
Yet petitioners here note that Congress has imposed on state agencies a 
continuing federal duty to "take all necessary steps to correct any . . . un- 
derpayment of aid under the State plan." 42 U. S. C. 602(a)(22); see also 
45 CFR 205.10(a) (1984). The relief in this case too might therefore be 
described as related to a continuing federal duty, "part of a plan that oper- 
ates prospectively to bring about the delayed benefits of a [constitutionally 
administered program]." Milliken, supra, at 290 (emphasis in original). 



GREEN" u MANSOTJR 81 

64 BLACKMUN, J., dissenting 

I would hold that whether the Eleventh Amendment was 
intended simply to provide that a State cannot be sued in fed- 
eral court where the basis of jurisdiction is that the plaintiff is 
a citizen of another State or an alien (as I believe), or was 
intended to constitutionalize a much broader principle of 
state sovereign immunity (as the majority believes), there is 
simply nothing offensive to that Amendment in an order that 
the State notify class members of the possibility that they 
may be entitled to relief through the state administrative 
process. Because that order neither imposes significant 
costs on the State nor creates any direct liabilities against it, 
the Quern Court properly placed it "on the Ex parte Young 
side of the Eleventh Amendment line." 440 U. S., at 347. 

JUSTICE BLACKMUN, with whom JUSTICE BRENNAN, 
JUSTICE MARSHALL, and JUSTICE STEVENS join, dissenting. 

I joined JUSTICE BRENNAN' s dissent in Atascadero State 
Hospital v. Scanlon, 473 U. S. 234, 247 (1985), and I join 
his dissent in this case. I fully agree that the Court's 
Eleventh Amendment approach, as demonstrated by the dif- 
ference between the result in this case and that in Quern 
v. Jordan, 440 U. S. 332 (1979), is sterile, produces incon- 
sistent decisions, and is in serious need of reconsideration. 
Cf. Garcia v. San Antonio Metropolitan Transit Authority, 
469 U. S. 528, 539, 546-547 (1985). 

But I also would reverse the judgment of the Court of 
Appeals in this case for the additional reason expressed in 
rny dissent (joined by JUSTICES BRENNAN, MARSHALL, and 
STEVENS) in Atascadero, 473 U. S., at 302, namely, the 
waiver by Michigan, "as a willing recipient of federal ftmds," 
id., at 304, of any Eleventh Amendment barrier that other- 
wise might exist. The State too easily avoids its responsi- 
bilities, and the Court by its decision today allows the State 
to go its way unimpeded and unburdened with any remedy 
for those who have been wronged during the period of Michi- 
gan's noncompliance with federal law. 



82 OCTOBER TERM, 1985 

Syllabus 474 U. S. 

HEATH v. ALABAMA 

CERTIORARI TO THE SUPREME COURT OF ALABAMA 
No. 84-5555. Argued October 9, 1985 Decided December 3, 1985 

Petitioner hired two men to kill his wife. In accordance with petitioner's 
plan, the men kidnaped petitioner's wife from her home in Alabama. 
Her body was later found on the side of a road in Georgia. Petitioner 
pleaded guilty to "malice" murder in a Georgia trial court in exchange for 
a sentence of life imprisonment. Subsequently, he was tried and con- 
victed of murder during a kidnaping and was sentenced to death in an 
Alabama trial court, which rejected his claim of double jeopardy. The 
Alabama Court of Criminal Appeals and the Alabama Supreme Court 
affirmed the conviction. 

Held: 

1. This Court will not decide whether the Alabama trial court had 
jurisdiction, where petitioner did not claim lack of jurisdiction in his 
petition to the Alabama Supreme Court but raised the claim for the 
first time in his petition to this Court. P. 87. 

2. Under the dual sovereignty doctrine, successive prosecutions by 
two States for the same conduct are not barred by the Double Jeopardy 
Clause of the Fifth Amendment, and, hence, Alabama was not barred 
from trying petitioner. Pp. 87-93. 

(a) The dual sovereignty doctrine provides that when a defendant in 
a single act violates the "peace and dignity" of two sovereigns by break- 
ing the laws of each, he has committed two distinct "offences" for double 
jeopardy purposes. In applying the doctrine, the crucial determination 
is whether the two entities that seek successively to prosecute a defend- 
ant for the same course of conduct can be termed separate sovereigns. 
This determination turns on whether the prosecuting entities' powers to 
undertake criminal prosecutions derive from separate and independent 
sources. It has been uniformly held that the States are separate sover- 
eigns with respect to the Federal Government because each State's 
power to prosecute derives from its inherent sovereignty, preserved to 
it by the Tenth Amendment, and not from the Federal Government. 
Given the distinct sources of their powers to try a defendant, the States 
are no less sovereign with respect to each other than they are with 
respect to the Federal Government. Pp. 87-91. 

(b) The application of the dual sovereignty principle cannot be re- 
stricted to cases in which two prosecuting sovereigns can demonstrate 
that allowing only one sovereign to exercise jurisdiction over the defend- 



HEATH u ALABAMA 83 

82 Opinion of the Court 

ant will interfere with the second sovereign's un vindicated "interests." 
If the prosecuting entities are separate sovereigns, the circumstances of 
the case and the specific "interests" of each are irrelevant. Pp. 91-92. 
(c) The suggestion that the dual sovereignty doctrine be overruled 
and replaced with a balancing of interests approach is rejected. The 
Court's rationale for the doctrine is not a fiction that can be disregarded 
in difficult cases; it finds weighty support in the historical understanding 
and political realities of the States' role in the federal system and in the 
Double Jeopardy Clause itself. Pp. 92-93. 
455 So. 2d 905, affirmed. 

O'CONNOR, J., delivered the opinion of the Court, in which BURGER, 
C. J., and WHITE, BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., 
joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, 
J., joined, post, p. 94. MARSHALL, J., filed a dissenting opinion, in which 
BRENNAN, J., joined, post, p. 95. 

Ronald J. Allen argued the cause and filed briefs for 
petitioner. 

William D. Little, Assistant Attorney General of Alabama, 
argued the cause for respondent. With him on the brief was 
Charles A. Graddick, Attorney General. 

JUSTICE O'CONNOR delivered the opinion of the Court. 

The question before the Court is whether the Double Jeop- 
ardy Clause of the Fifth Amendment bars Alabama from 
trying petitioner for the capital offense of murder during a 
kidnaping after Georgia has convicted him of murder based 
on the same homicide. In particular, this case presents the 
issue of the applicability of the dual sovereignty doctrine to 
successive prosecutions by two States. 



In August 1981, petitioner, Larry Gene Heath, hired 
Charles Owens and Gregory Lumpkin to kill his wife, Re- 
becca Heath, who was then nine months pregnant, for a sum 
of $2 , 000 . On the morning of August 3 1 , 198 1 , petitioner left 
the Heath residence in Russell County, Alabama, to meet 
with Owens and Lumpkin in Georgia, just over the Alabama 



84 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

border from the Heath home. Petitioner led them back to 
the Heath residence, gave them the keys to the Heaths' car 
and house, and left the premises in his girlfriend's truck. 
Owens and Lumpkin then kidnaped Rebecca Heath from her 
home. The Heath car, with Rebecca Heath's body inside, 
was later found on the side of a road in Troup County, Geor- 
gia. The cause of death was a gunshot wound in the head. 
The estimated time of death and the distance from the Heath 
residence to the spot where Rebecca Heath's body was found 
are consistent with the theory that the murder took place in 
Georgia, and respondent does not contend otherwise. 

Georgia and Alabama authorities pursued dual investiga- 
tions in which they cooperated to some extent. On Septem- 
ber 4, 1981, petitioner was arrested by Georgia authorities. 
Petitioner waived his Miranda rights and gave a full con- 
fession admitting that he had arranged his wife's kidnaping 
and murder. In November 1981, the grand jury of Troup 
County, Georgia, indicted petitioner for the offense of "mal- 
ice" murder under Ga. Code Ann. 16-5-1 (1984). l Georgia 
then served petitioner with notice of its intention to seek the 
death penalty, citing as the aggravating circumstance the 
fact that the murder was "caused and directed" by petitioner. 
Record 742. See Ga. Code Ann. 17-10-30(b)(6) (1982). 
On February 10, 1982, petitioner pleaded guilty to the Geor- 
gia murder charge in exchange for a sentence of life imprison- 
ment, which he understood could involve his serving as few 
as seven years in prison. See Record 495. 

On May 5, 1982, the grand jury of Russell County, Ala- 
bama, returned an indictment against petitioner for the capi- 

1 The indictment read as follows: 

"[The grand jurors] in the name and on behalf of the citizens of Georgia, 
charge and accuse LARRY GENE HEATH [et al.] with the offense of 
MURDER (26-1101); for that the said LARRY GENE HEATH [et al.] on 
the date of August 31, 1981, in the county aforesaid, did then and there 
unlawfully and with malice aforethought cause the death of Rebecca 
McGuire Heath, a human being, by shooting her with a gun, a deadly 
weapon." Record 740. 



HEATH u ALABAMA 85 

82 Opinion of the Court 

tal offense of murder during a kidnaping. 2 See Ala. Code 
13A-5-40(a)(l) (1982). Before trial on this indictment, 
petitioner entered pleas of autrefois convict and former jeop- 
ardy under the Alabama and United States Constitutions, ar- 
guing that his conviction and sentence in Georgia barred his 
prosecution in Alabama for the same conduct. Petitioner 
also entered a plea contesting the jurisdiction of the Alabama 
court on the ground that the crime had occurred in Georgia. 

After a hearing, the trial court rejected petitioner's double 
jeopardy claims. It assumed, arguendo, that the two pros- 
ecutions could not have been brought in succession by one 
State but held that double jeopardy did not bar successive 
prosecutions by two different States for the same act. See 
Record 776. The court postponed a ruling on petitioner's 
plea to jurisdiction until the close of the State's case in chief. 
See id., at 778. 

At the close of the State's case, petitioner argued that Ala- 
bama did not have jurisdiction under state law because there 
had been no evidence of kidnaping and all the evidence 
showed that Rebecca Heath was killed in Georgia. The 
State responded that a kidnaping had been proved, and that 
under Ala. Code 152-3 (1982), if a crime commences in Ala- 
bama it may be punished in Alabama regardless of where the 
crime is consummated. The court rejected both petitioner's 
jurisdictional plea and his renewed double jeopardy claims. 
See Record 590. 

On January 12, 1983, the Alabama jury convicted peti- 
tioner of murder during a kidnaping in the first degree. 
After a sentencing hearing, the jury recommended the death 



2 The indictment stated: 

"Larry Gene Heath did intentionally cause the death of Rebecca Heath, 
by shooting her with a gun, and Larry Gene Heath caused said death 
during Larry Gene Heath's abduction of, or attempt to abduct, Rebecca 
Heath with intent to inflict physical injury upon her, in violation of 
13A-5-40(a)(l) of the Code of Alabama 1975, as amended, against the 
peace and dignity of the State of Alabama." Id., at 728. 



86 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

penalty. Pursuant to Alabama law, a second sentencing 
hearing was held before the trial judge. The judge accepted 
the jury's recommendation, finding that the sole aggravating 
factor, that the capital offense was "committed while the de- 
fendant was engaged in the commission of a kidnapping/' out- 
weighed the sole mitigating factor, that the "defendant was 
convicted of the murder of Rebecca Heath in the Superior 
Court of Troup County, Georgia, . . . and received a sentence 
of life imprisonment in that court." Id., at 718-720. See 
Ala. Code 13A-5-49(4), 13A-5-50 (1982). 

On appeal, the Alabama Court of Criminal Appeals re- 
jected petitioner's pleas of autrefois convict and former jeop- 
ardy under the Alabama and United States Constitutions and 
affirmed his conviction. 455 So. 2d 898 (1983). Petitioner 
then filed a petition for writ of certiorari with the Alabama 
Supreme Court, stating the sole issue to be "whether or not 
the prosecution in the State of Alabama constituted double 
jeopardy in violation of the 5th Amendment of the United 
States Constitution." App. 92. The court granted his peti- 
tion, and unanimously affirmed his conviction. Ex parte 
Heath, 455 So. 2d 905 (1984). 

The Alabama Supreme Court noted that "[p]rosecutions 
under the laws of separate sovereigns do not improperly sub- 
ject an accused twice to prosecutions for the same offense," 
citing this Court's cases applying the dual sovereignty doc- 
trine. Id., at 906. The court acknowledged that this Court 
has not considered the applicability of the dual sovereignty 
doctrine to successive prosecutions by different States. It 
reasoned, however, that "[i]f, for double jeopardy purposes, 
Alabama is considered to be a sovereign entity vis--vis the 
federal government then surely it is a sovereign entity vis-a- 
vis the State of Georgia." Ibid. 

Petitioner sought a writ of certiorari from this Court, rais- 
ing double jeopardy claims and claims based on Alabama's 
exercise of jurisdiction. No due process objections were 
asserted. We granted certiorari limited to the question 



HEATH v. ALABAMA 87 

82 Opinion of the Court 

whether petitioner's Alabama conviction was barred by this 
Court's decision in Brown v. Ohio, 432 U. S. 161 (1977), and 
requested the parties to address the question of the appli- 
cability of the dual sovereignty doctrine to successive pros- 
ecutions by two States. 470 U. S. 1026 (1985). For the 
reasons explained below, we affirm the judgment of the Ala- 
bama Supreme Court. 

Despite the fact that this Court did not grant certiorari on 
the constitutional objection to Alabama's exercise of jurisdic- 
tion, petitioner has continued to argue in this Court his juris- 
dictional claim. See Tr. of Oral Arg. 11-22, 29-31; Brief for 
Petitioner 15. We decline to decide the issue because peti- 
tioner did not claim lack of jurisdiction in his petition to the 
Alabama Supreme Court and he raised the claim for the ftrst 
time in his petition to this Court. Pet. for Cert, 4. Even if 
we were not jurisdictionally barred from considering claims 
not pressed or passed upon in the state court, as has some- 
times been stated, see, e. g., State Farm Mutual Automobile 
Ins. Co. v. Duel, 324 U. S. 154, 160 (1945); Crowell v. 
Randell, 10 Pet. 368, 392 (1836), the longstanding rule that 
this Court will not consider such claims creates, at the least, 
a weighty presumption against review. See, e. g. , Illinois 
v. Gates, 462 U. S. 213, 218-222 (1983). 

II 

Successive prosecutions are barred by the Fifth Amend- 
ment only if the two offenses for which the defendant is pros- 
ecuted are the "same" for double jeopardy purposes. Re- 
spondent does not contravene petitioner's contention that the 
offenses of "rnurder during a kidnaping-" and "malice mur- 
der,'* as construed by the courts of Alabama and Georgia 
respectively, may be considered greater and lesser offenses 
and, thus, the "same" offense under Brown v. Ofr/o, supra , 
absent operation of the dual sovereignty principle. See id., 
at 169; Illinois v. Vitale, 447 U. S. 410 (1980). We there- 
fore assume, arguendo, that, had these offenses arisen under 



88 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

the laws of one State and had petitioner been separately 
prosecuted for both offenses in that State, the second convic- 
tion would have been barred by the Double Jeopardy Clause. 
The sole remaining question upon which we granted certio- 
rari is whether the dual sovereignty doctrine permits succes- 
sive prosecutions under the laws of different States which 
otherwise would be held to "subject [the defendant] for the 
same offence to be twice put in jeopardy." U. S. Const., 
Amdt. 5. Although we have not previously so held, we be- 
lieve the answer to this query is inescapable. The dual sov- 
ereignty doctrine, as originally articulated and consistently 
applied by this Court, compels the conclusion that successive 
prosecutions by two States for the same conduct are not 
barred by the Double Jeopardy Clause. 

The dual sovereignty doctrine is founded on the common- 
law conception of crime as an offense against the sovereignty 
of the government. When a defendant in a single act vio- 
lates the "peace and dignity" of two sovereigns by breaking 
the laws of each, he has committed two distinct "offences." 
United States v. Lanza, 260 U. S. 377, 382 (1922). As the 
Court explained in Moore v. Illinois, 14 How. 13, 19 (1852), 
"[a]n offence, in its legal signification, means the transgres- 
sion of a law." Consequently, when the same act trans- 
gresses the laws of two sovereigns, "it cannot be truly 
averred that the offender has been twice punished for* the 
same offence; but only that by one act he has committed two 
offences, for each of which he is justly punishable." Id., 
at 20. 

In applying the dual sovereignty doctrine, then, the crucial 
determination is whether the two entities that seek succes- 
sively to prosecute a defendant for the same course of con- 
duct can be termed separate sovereigns. This determination 
turns on whether the two entities draw their authority to 
punish the offender from distinct sources of power. See, 
e. g., United States v. Wheeler, 435 U. S. 313, 320 (1978); 
Waller v. Florida, 397 U. S. 387, 393 (1970); Puerto Eico ^ 



HEATH v. ALABAMA 89 

82 Opinion of the Court 

Shell Co., 302 U. S. 253, 264-265 (1937); Lanza, supra, at 
382; Grafton v. United States, 206 U. S. 333, 354-355 (1907). 
Thus, the Court has uniformly held that the States are sepa- 
rate sovereigns with respect to the Federal Government be- 
cause each State's power to prosecute is derived from its own 
"inherent sovereignty," not from the Federal Government. 
Wheeler, supra, at 320, n. 14. See Abbate v. United States, 
359 U. S. 187, 193-194 (1959) (collecting cases); Lanza, 
supra. As stated in Lanza, supra, at 382: 

"Each government in determining what shall be an of- 
fense against its peace and dignity is exercising its own 
sovereignty, not that of the other. 

"It follows that an act denounced as a crime by both 
national and state sovereignties is an offense against the 
peace and dignity of both and may be punished by each. " 

See also Bartkus v. Illinois, 359 U. S. 121 (1959); Westfall v. 
United States, 274 U. S. 256, 258 (1927) (Holmes, J.) (the 
proposition that the State and Federal Governments may 
punish the same conduct "is too plain to need more than 
statement"). 

The States are no less sovereign with respect to each other 
than they are with respect to the Federal Government. 
Their powers to undertake criminal prosecutions derive from 
separate and independent sources of power and authority 
originally belonging to them before admission to the Union 
and preserved to them by the Tenth Amendment. See 
Lanza, supra, at 382. The States are equal to each other "in 
power, dignity and authority, each competent to exert that 
residuum of sovereignty not delegated to the United States 
by the Constitution itself." Coyle v. Oklahoma, 221 U. S. 
559, 567 (1911). See Skiriotes v. Florida, 313 U. S. 69, 77 
(1941). Thus, "[e]ach has the power, inherent in any sover- 
eign, independently to determine what shall be an offense 
against its authority and to punish such offenses, and in doing 
so each 'is exercising its own sovereignty, not that of the 



90 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

other.'" Wheeler, supra, at 320 (quoting Lanza, supra, 
at 382). 

The cases in which the Court has applied the dual sover- 
eignty principle outside the realm of successive federal and 
state prosecutions illustrate the soundness of this analysis. 
United States v. Wheeler, supra, is particularly instructive 
because there the Court expressly refused to find that only 
the State and Federal Governments could be considered dis- 
tinct sovereigns with respect to each other for double jeop- 
ardy purposes, stating that "so restrictive a view of [the dual 
sovereignty] concept . . . would require disregard of the very 
words of the Double Jeopardy Clause." Id., at 330. In- 
stead, the Wheeler Court reiterated the principle that the 
sovereignty of two prosecuting entities for these purposes is 
determined by "the ultimate source of the power under which 
the respective prosecutions were undertaken." Id., at 320. 
On the basis of this reasoning, the Court held that the Navajo 
Tribe, whose power to prosecute its members for tribal of- 
fenses is derived from the Tribe's "primeval sovereignty" 
rather than a delegation of federal authority, is an independ- 
ent sovereign from the Federal Government for purposes of 
the dual sovereignty doctrine. Id. , at 328. 

In those instances where the Court has found the dual 
sovereignty doctrine inapplicable, it has done so because 
the two prosecuting entities did not derive their powers 
to prosecute from independent sources of authority. Thus, 
the Court has held that successive prosecutions by federal 
and territorial courts are barred because such courts are 
"creations emanating from the same sovereignty." Puerto 
Rico, 302 U. S., at 264. See id., at 264-266. See also 
Grafton, supra (the Philippine Islands). Similarly, munici- 
palities that derive their power to try a defendant from the 
same organic law that empowers the State to prosecute are 
not separate sovereigns with respect to the State. See, 
e. g., Waller, supra. These cases confirm that it is the 
presence of independent sovereign authority to prosecute, 
not the relation between States and the Federal Gov- 



HEATH v. ALABAMA 91 

82 Opinion of the Court 

eminent in our federalist system, that constitutes the basis 
for the dual sovereignty doctrine. 

Petitioner argues that Nielsen v. Oregon, 212 U. S. 315 
(1909), indicates, albeit in dicta, that where States have con- 
current jurisdiction over a criminal offense, the first State to 
prosecute thereby bars prosecution by any other State. We 
find that Nielsen is limited to its unusual facts and has con- 
tinuing relevance, if at all, only to questions of jurisdiction 
between two entities deriving their concurrent jurisdiction 
from a single source of authority. In Nielsen, the Court set 
aside a conviction obtained by the State of Oregon against a 
resident of the State of Washington for his operation of a 
purse net for fish in the Columbia River pursuant to a valid 
license to do so from the State of Washington. The Court 
noted: 

"By the legislation of Congress the Columbia River is 
made the common boundary between Oregon and Wash- 
ington, and to each of those States is given concurrent 
jurisdiction on the waters of that river." Id., at 319. 
"[T]he grant of concurrent jurisdiction may bring up 
from time to time . . . some curious and difficult ques- 
tions, so we properly confine ourselves to the precise 
question presented. ... It is enough to decide, as we do, 
that for an act done within the territorial limits of the 
State of Washington under authority and license from 
that State one cannot be prosecuted and punished by the 
State of Oregon." Id., at 320-321. 

It is obvious that the Nielsen Court did not attempt to decide 
or even to consider the double jeopardy effect of successive 
state prosecutions for offenses proscribed by both States; the 
case, therefore, has no bearing on the issue of the applicabil- 
ity of the dual sovereignty doctrine presented in this case. 

Ill 

Petitioner invites us to restrict the applicability of the dual 
sovereignty principle to cases in which two governmental 



92 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

entities, having concurrent jurisdiction and pursuing quite 
different interests, can demonstrate that allowing only one 
entity to exercise jurisdiction over the defendant will inter- 
fere with the unvindicated interests of the second entity and 
that multiple prosecutions therefore are necessary for the 
satisfaction of the legitimate interests of both entities. This 
balancing of interests approach, however, cannot be recon- 
ciled with the dual sovereignty principle. This Court has 
plainly and repeatedly stated that two identical offenses are 
not the "same offence" within the meaning of the Double 
Jeopardy Clause if they are prosecuted by different sover- 
eigns. See, e. g., United States v. Lanza, 260 U. S. 377 
(1922) (same conduct, indistinguishable statutes, same "inter- 
ests"). If the States are separate sovereigns, as they must 
be under the definition of sovereignty which the Court con- 
sistently has employed, the circumstances of the case are 
irrelevant. 

Petitioner, then, is asking the Court to discard its sover- 
eignty analysis and to substitute in its stead his difficult and 
uncertain balancing of interests approach. The Court has 
refused a similar request on at least one previous occasion, 
see Abbate v. United States, 359 U. S. 187 (1959); id., at 196 
(BRENNAN, J., separate opinion), and rightfully so. The 
Court's express rationale for the dual sovereignty doctrine is 
not simply a fiction that can be disregarded in difficult cases. 
It finds weighty support in the historical understanding and 
political realities of the States' role in the federal system and 
in the words of the Double Jeopardy Clause itself, "nor shall 
any person be subject for the same offence to be twice put in 
jeopardy of life or limb." U. S. Const., Amdt. 5 (emphasis 
added). See Wheeler, 435 U. S., at 330. 

It is axiomatic that "[i]n America, the powers of sover- 
eignty are divided between the government of the Union, 
and those of the States. They are each sovereign, with 
respect to the objects committed to it, and neither sover- 
eign with respect to the objects committed to the other." 



HEATH v. ALABAMA 93 

82 Opinion of the Court 

McCulloch v. Maryland, 4 Wheat. 316, 410 (1819). It is as 
well established that the States, "as political communities, 
[are] distinct and sovereign, and consequently foreign to each 
other." Bank of United States v. Daniel, 12 Pet. 32, 54 
(1838). See also Skiriotes v. Florida, 313 U. S., at 77; Coyle 
v. Oklahoma, 221 U. S., at 567. The Constitution leaves in 
the possession of each State "certain exclusive and very im- 
portant portions of sovereign power." The Federalist No. 9, 
p. 55 (J. Cooke ed. 1961). Foremost among the prerogatives 
of sovereignty is the power to create and enforce a criminal 
code. See, e. g., Alfred L. Snapp & Son, Inc. v. Puerto 
Rico ex rel. Barez, 458 U. S. 592, 601 (1982); McCulloch, 
supra, at 418. To deny a State its power to enforce its crimi- 
nal laws because another State has won the race to the court- 
house "would be a shocking and untoward deprivation of the 
historic right and obligation of the States to maintain peace 
and order within their confines." Bartkus, 359 U. S., 
at 137. 

Such a deprivation of a State's sovereign powers cannot be 
justified by the assertion that under "interest analysis" the 
State's legitimate penal interests will be satisfied through a 
prosecution conducted by another State. A State's interest 
in vindicating its sovereign authority through enforcement of 
its laws by definition can never be satisfied by another 
State's enforcement of its own laws. Just as the Federal 
Government has the right to decide that a state prosecution 
has not vindicated a violation of the "peace and dignity" of the 
Federal Government, a State must be entitled to decide that 
a prosecution by another State has not satisfied its legitimate 
sovereign interest. In recognition of this fact, the Court 
consistently has endorsed the principle that a single act con- 
stitutes an "offence" against each sovereign whose laws are 
violated by that act. The Court has always understood the 
words of the Double Jeopardy Clause to reflect this funda- 
mental principle, and we see no reason why we should 
reconsider that understanding today. 



94 OCTOBER TERM, 1985 

BRENNAN, J., dissenting 474 U. S. 

The judgment of the Supreme Court of Alabama is 
affirmed. 

It is so ordered. 

JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, 
dissenting. 

I concur wholeheartedly in JUSTICE MARSHALL'S dissent. 
I write separately only to clarify my views on the role that 
"different interests" should play in determining whether two 
prosecutions are "for the same offence" within the meaning of 
the Double Jeopardy Clause. 

In Abbate v. United States, 359 U. S. 187 (1959), in addi- 
tion to arguing that the dual sovereignty doctrine permitted 
successive state and federal prosecutions, the Federal Gov- 
ernment also urged that the federal prosecution was not 
barred because the two prosecutions were not "for the same 
offense." The Government's theory was that, because the 
federal and state statutes involved had divergent specific 
purposes the federal law to protect communications and the 
state law to protect private property and thus promoted 
different "interests," the prosecutions were really for differ- 
ent offenses. 

I rejected this argument in a separate opinion. Id., at 
196-201. My concern was that "this reasoning would apply 
equally if each of two successive federal prosecutions based 
on the same acts was brought under a different federal stat- 
ute, and each statute was designed to protect a different fed- 
eral interest." Id., at 197 (emphasis in original). That 
result I found clearly barred by the Fifth Amendment.* 



*I illustrated how radical and pernicious a revision in existing double 
jeopardy jurisprudence the Government's theory might work by referring 
to In re Nielsen, 131 U. S. 176 (1889). Abbate v. United States, 359 U. S., 
at 201. In Nielsen, the defendant, a Mormon with more than one wife, 
had been convicted of violating two separate congressional statutes that 
applied to the Territory of Utah in two successive prosecutions. In the 
first prosecution he was tried for and convicted of cohabiting with more 



HEATH v. ALABAMA 95 

82 MARSHALL, J., dissenting 

I adhere to the position I took in Abbate, that the different 
purposes or interests served by specific statutes cannot 
justify an exception to our established double jeopardy law. 
However, I read JUSTICE MARSHALL'S dissent to use "inter- 
est" analysis in another context. He employs it to demon- 
strate the qualitative difference in the general nature of 
federal and state interests and the qualitative similarity in 
the nature of States' interest. JUSTICE MARSHALL'S use of 
this interest analysis furthers, rather than undermines, the 
purposes of the Double Jeopardy Clause. Based on this 
understanding, I join JUSTICE MARSHALL'S dissent. 

JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins, 
dissenting. 

Seizing upon the suggestion in past cases that every "inde- 
pendent" sovereign government may prosecute violations of 
its laws even when the defendant has already been tried for 
the same crime in another jurisdiction, the Court today gives 
short shrift to the policies underlying those precedents. The 
"dual sovereignty" doctrine, heretofore used to permit fed- 
eral and state prosecutions for the same offense, was born of 
the need to accommodate complementary state and federal 
concerns within our system of concurrent territorial jurisdic- 
tions. It cannot justify successive prosecutions by different 
States. Moreover, even were the dual sovereignty doctrine 
to support successive state prosecutions as a general matter, 
it simply could not legitimate the collusion between Georgia 
and Alabama in this case to ensure that petitioner is executed 
for his crime. 



than one woman, in the second he was tried for and convicted of adultery. 
The Court correctly held that the second prosecution had unconstitution- 
ally placed the defendant twice in jeopardy for the same offense Under 
the rule the Government proposed in Abbate, however, the mere difference 
between the interests in prohibiting multiple sexual partners and in pro- 
scribing extramarital sexual relationships would have permitted successive 
prosecutions. 



96 OCTOBER TERM, 1985 

MARSHALL, J., dissenting 474 U. S. 



On August 31, 1981, the body of Rebecca Heath was 
discovered in an abandoned car in Troup County, Georgia. 
Because the deceased was a resident of Russell County, 
Alabama, members of the Russell County Sheriff's Depart- 
ment immediately joined Troup County authorities in investi- 
gating the causes and agents of her death. Tr. 359. This 
cooperative effort proved fruitful. On September 4, peti- 
tioner Larry Heath, the deceased's husband, was arrested 
and brought to the Georgia State Patrol barracks in Troup 
County, where he confessed to having hired other men to 
murder his wife. Shortly thereafter, petitioner was indicted 
by the grand jury of Troup County for malice murder. The 
prosecution's notice to petitioner that it was seeking the 
death penalty triggered the beginning of the Unified Appeals 
Procedure that Georgia requires in capital cases. But while 
these pretrial proceedings were still in progress, petitioner 
seized the prosecution's offer of a life sentence in exchange 
for a guilty plea. Upon entry of his plea in February 1982, 
petitioner was sentenced in Troup County Superior Court 
to life imprisonment. His stay in the custody of Georgia 
authorities proved short, however. Three months later, a 
Russell County, Alabama, grand jury indicted him for the 
capital offense of murdering Rebecca Heath during the 
course of a kidnaping in the first degree. 

The murder of Rebecca Heath must have been quite note- 
worthy in Russell County, Alabama. By petitioner's count, 
of the 82 prospective jurors questioned before trial during 
voir dire, all but 7 stated that they were aware that peti- 
tioner had pleaded guilty to the same crime in Georgia. Id., 
at 294. The voir dire responses of almost all of the remain- 
ing 75 veniremen can only be characterized as remarkable. 
When asked whether they could put aside their knowledge 
of the prior guilty plea in order to give petitioner a fair trial 
in Alabama, the vast majority answered in the affirmative. 
See, e. g., id., at 110, 112-113, 134, 254. These answers sat- 



HEATH v. ALABAMA 97 

82 MARSHALL, J. , dissenting 

isfied the trial judge, who denied petitioner's challenges for 
cause except as to those jurors who explicitly admitted that 
the Georgia proceedings would probably affect their assess- 
ment of petitioner's guilt. 

With such a well-informed jury, the outcome of the trial 
was surely a foregone conclusion. Defense counsel could do 
little but attempt to elicit information from prosecution wit- 
nesses tending to show that the crime was committed exclu- 
sively in Georgia. The court having rejected petitioner's 
constitutional and jurisdictional claims, the defense was left 
to spend most of its summation arguing that Rebecca Heath 
may not actually have been kidnaped from Alabama before 
she was murdered and that petitioner was already being pun- 
ished for ordering that murder. Petitioner was convicted 
and, after sentencing hearings, was condemned to die. The 
conviction and sentence were upheld by the Alabama Court 
of Criminal Appeals, 455 So. 2d 898 (1983), and the Alabama 
Supreme Court. Ex parte Heath, 455 So. 2d 905 (1984). 

II 

Had the Georgia authorities suddenly become dissatisfied 
with the life sentence petitioner received in their courts and 
reindicted petitioner in order to seek the death penalty once 
again, that indictment would without question be barred by 
the Double Jeopardy Clause of the Fifth Amendment, as ap- 
plied to the States by the Fourteenth Amendment, Benton 
v. Maryland, 395 U. S. 784 (1969). Whether the second in- 
dictment repeated the charge of malice murder or instead 
charged murder in the course of a kidnaping, it would surely, 
under any reasonable constitutional standard, offend the bar 
to successive prosecutions for the same offense. See Brown 
v. Ohio, 432 U. S. 161, 166 (1977); id., at 170 (BRENNAN, J., 
concurring). 

The only difference between this case and such a hypo- 
thetical volte-face by Georgia is that here Alabama, not 
Georgia, was offended by the notion that petitioner might 



98 OCTOBER TERM, 1985 

MARSHALL, J., dissenting 474 U. S. 

not forfeit his life in punishment for his crime. The only rea- 
son the Court gives for permitting Alabama to go forward 
is that Georgia and Alabama are separate sovereigns. 



The dual sovereignty theory posits that where the same 
act offends the laws of two sovereigns, "it cannot be truly 
averred that the offender has been twice punished for the 
same offence; but only that by one act he has committed two 
offences, for each of which he is justly punishable." Moore 
v. Illinois, 14 How. 13, 20 (1852). Therefore, "prosecutions 
under the laws of separate sovereigns do not, in the language 
of the Fifth Amendment, 'subject [the defendant] for the 
same offence to be twice put in jeopardy.' " United States v. 
Wheeler, 435 U. S. 313, 317 (1978). Mindful of the admoni- 
tions of Justice Black, we should recognize this exegesis of 
the Clause as, at best, a useful fiction and, at worst, a dan- 
gerous one. See Bartkus v. Illinois, 359 U. S. 121, 158 
(1959) (Black, J., dissenting). No evidence has ever been 
adduced to indicate that the Framers intended the word 
"offence" to have so restrictive a meaning. 1 

This strained reading of the Double Jeopardy Clause has 
survived and indeed flourished in this Court's cases not 
because of any inherent plausibility, but because it provides 
reassuring interpretivist support for a rule that accommo- 
dates the unique nature of our federal system. Before this 
rule is extended to cover a new class of cases, the reasons for 
its creation should therefore be made clear. 



1 It is curious to note how reluctant the Court has always been to ascer- 
tain the intent of the Framers in this area. The furthest the Court has 
ever progressed on such an inquiry was to note: "It has not been deemed 
relevant to discussion of our problem to consider dubious English prece- 
dents concerning the effect of foreign criminal judgments on the ability of 
English courts to try charges arising out of the same conduct . . . ." 
Bartkus v. Illinois, 359 U. S., at 128, n. 9. But see id., at 156 (Black, J., 
dissenting); M. Friedland, Double Jeopardy 360-364 (1969). 



HEATH v. ALABAMA 99 

82 MARSHALL, J., dissenting 

Under the constitutional scheme, the Federal Government 
has been given the exclusive power to vindicate certain of our 
Nation's sovereign interests, leaving the States to exercise 
complementary authority over matters of more local concern. 
The respective spheres of the Federal Government and the 
States may overlap at times, and even where they do not, dif- 
ferent interests may be implicated by a single act. See, 
e. g., Abbate v. United States, 359 U. S. 187 (1959) (conspir- 
acy to dynamite telephone company facilities entails both de- 
struction of property and disruption of federal communica- 
tions network). Yet were a prosecution by a State, however 
zealously pursued, allowed to preclude further prosecution 
by the Federal Government for the same crime, an entire 
range of national interests could be frustrated. The impor- 
tance of those federal interests has thus quite properly been 
permitted to trump a defendant's interest in avoiding suc- 
cessive prosecutions or multiple punishments for the same 
crime. See Screws v. United States, 325 U. S. 91, 108-110, 
and n. 10 (1945) (plurality opinion). Conversely, because 
"the States under our federal system have the principal 
responsibility for defining and prosecuting crimes," Abbate v. 
United States, supra, at 195, it would be inappropriate in 
the absence of a specific congressional intent to pre-empt 
state action pursuant to the Supremacy Clause to allow a 
federal prosecution to preclude state authorities from vin- 
dicating "the historic right and obligation of the States to 
maintain peace and order within their confines," Bartkus v. 
Illinois, supra, at 137. 

The complementary nature of the sovereignty exercised by 
the Federal Government and the States places upon a de- 
fendant burdens commensurate with concomitant privileges. 
Past cases have recognized that the special ordeal suffered by 
a defendant prosecuted by both federal and state authorities 
is the price of living in a federal system, the cost of dual 
citizenship. Every citizen, the Court has noted, "owes alle- 
giance to the two departments, so to speak, and within their 



100 OCTOBER TERM, 1985 

MARSHALL, J., dissenting 474 U. S. 

respective spheres must pay the penalties which each exacts 
for disobedience to its laws. In return, he can demand pro- 
tection from each within its own jurisdiction." United States 
v. Cruikshank, 92 U. S. 542, 551 (1876). See Moore v. Illi- 
nois, supra, at 20 ("Every citizen . . . may be said to owe al- 
legiance to two sovereigns, and may be liable to punishment 
for an infraction of the laws of either"). 

B 

Because all but one of the cases upholding the dual sov- 
ereignty doctrine have involved the unique relationship be- 
tween the Federal Government and the States, 2 the question 
whether a similar rule should exempt successive prosecutions 
by two different States from the command of the Double Jeop- 
ardy Clause is one for which this Court's precedents provide 
all too little illumination. Only once before has the Court ex- 
plicitly considered competing state prosecutorial interests. 
In that case, it observed that where an act is prohibited by the 
laws of two States with concurrent jurisdiction over the locus 
of the offense 

"the one first acquiring jurisdiction of the person may 
prosecute the offense, and its judgment is a finality in 
both States, so that one convicted or acquitted in the 
courts of the one State cannot be prosecuted for the 
same offense in the courts of the other." Nielsen v. 
Oregon, 212 U. S. 315, 320 (1909). 

Where two States seek to prosecute the same defendant 
for the same crime in two separate proceedings, the justifica- 

2 United States v. Wheeler, 435 U. S. 313 (1978), where the Court up- 
held successive prosecutions by Federal Government and Navajo tribal 
authorities, merely recognizes an analogous relationship between two 
governments with complementary concerns. While the Court noted that 
"Congress has plenary authority to legislate for the Indian tribes in all mat- 
ters, including their form of government," id., at 319, Congress has in fact 
wisely refrained from interfering in this sensitive area. The relationship 
between federal and tribal authorities is thus in this respect analogous to 
that between the Federal Government and the States. 



HEATH v. ALABAMA 101 

82 MARSHALL, J., dissenting 

tions found in the federal-state context for an exemption from 
double jeopardy constraints simply do not hold. Although 
the two States may have opted for different policies within 
their assigned territorial jurisdictions, the sovereign con- 
cerns with whose vindication each State has been charged are 
identical. Thus, in contrast to the federal-state context, bar- 
ring the second prosecution would still permit one govern- 
ment to act upon the broad range of sovereign concerns that 
have been reserved to the States by the Constitution. The 
compelling need in the federal-state context to subordinate 
double jeopardy concerns is thus considerably diminished in 
cases involving successive prosecutions by different States. 
Moreover, from the defendant's perspective, the burden of 
successive prosecutions cannot be justified as the quid pro 
quo of dual citizenship. 

To be sure, a refusal to extend the dual sovereignty rule to 
state-state prosecutions would preclude the State that has 
lost the "race to the courthouse" from vindicating legitimate 
policies distinct from those underlying its sister State's pros- 
ecution. But as yet, I am not persuaded that a State's desire 
to further a particular policy should be permitted to deprive 
a defendant of his constitutionally protected right not to be 
brought to bar more than once to answer essentially the same 
charges. 

Ill 

Having expressed my doubts as to the Court's ill-consid- 
ered resolution of the dual sovereignty question in this case, I 
must confess that my quarrel with the Court's disposition of 
this case is based less upon how this question was resolved 
than upon the fact that it was considered at all. Although, in 
granting Heath's petition for certiorari, this Court ordered 
the parties to focus upon the dual sovereignty issue, I believe 
the Court errs in refusing to consider the fundamental unfair- 
ness of the process by which petitioner stands condemned to 
die. 



102 OCTOBER TERM, 1985 

MARSHALL, J., dissenting 474 U. S. 

Even where the power of two sovereigns to pursue sepa- 
rate prosecutions for the same crime has been undisputed, 
this Court has barred both governments from combining to 
do together what each could not constitutionally do on its 
own. See Murphy v. Waterfront Comm'n, 378 U. S. 52 
(1964); Elkins v. United States, 364 U. S. 206 (I960). 3 And 
just as the Constitution bars one sovereign from facilitating 
another's prosecution by delivering testimony coerced under 
promise of immunity or evidence illegally seized, I believe 
that it prohibits two sovereigns from combining forces to en- 
sure that a defendant receives only the trappings of criminal 
process as he is sped along to execution. 

While no one can doubt the propriety of two States cooper- 
ating to bring a criminal to justice, the cooperation between 
Georgia and Alabama in this case went far beyond their ini- 
tial joint investigation. Georgia's efforts to secure petition- 
er's execution did not end with its acceptance of his guilty 
plea. Its law enforcement officials went on to play leading 
roles as prosecution witnesses in the Alabama trial. Indeed, 
had the Alabama trial judge not restricted the State to one 
assisting officer at the prosecution's table during trial, a 
Georgia officer would have shared the honors with an Ala- 
bama officer. Tr. 298. Although the record does not reveal 

3 To be sure, Murphy, which bars a State from compelling a witness to 
give testimony that might be used against him in a federal prosecution, and 
Elkins, which bars the introduction in a federal prosecution of evidence 
illegally seized by state officers, do not necessarily undermine the basis of 
the rule allowing successive state and federal prosecutions. It is one thing 
to bar a sovereign from using certain evidence and quite another to bar it 
from prosecuting altogether. But these cases can be read to suggest that 
despite the independent sovereign status of the Federal and State Govern- 
ments, courts should not be blind to the impact of combined federal-state 
law enforcement on an accused's constitutional rights. See Note, Double 
Prosecution by State and Federal Governments: Another Exercise in Fed- 
eralism, 80 Harv. L. Rev. 1538, 1547 (1967). Justice Harlan's belief that 
Murphy "abolished the 'two sovereignties' rule," Stevens v. Marks, 383 
U. S. 234, 250 (1966) (Harlan, J., concurring in part, dissenting in part), 
was thus well founded. 



HEATH tt ALABAMA 103 

82 MARSHALL, J., dissenting 

the precise nature of the assurances made by Georgia au- 
thorities that induced petitioner to plead guilty in the first 
proceeding against him, I cannot believe he would have done 
so had he been aware that the officials whose forbearance he 
bought in Georgia with his plea would merely continue their 
efforts to secure his death in another jurisdiction. Cf. San- 
tobello v. New York, 404 U. S. 257, 262 (1971). 

Even before the Fourteenth Amendment was held to incor- 
porate the protections of the Double Jeopardy Clause, four 
Members of this Court registered their outrage at "an in- 
stance of the prosecution being allowed to harass the accused 
with repeated trials and convictions on the same evidence, 
until it achieve[d] its desired result of a capital verdict." 
Ciucci v. Illinois, 356 U. S. 571, 573 (1958). Such "relent- 
less prosecutions," they asserted, constituted "an unseemly 
and oppressive use of a criminal trial that violates the concept 
of due process contained in the Fourteenth Amendment, 
whatever its ultimate scope is taken to be." 7d., at 575. 
The only differences between the facts in Ciucci and those in 
this case are that here the relentless effort was a cooperative 
one between two States and that petitioner sought to avoid 
trial by pleading guilty. Whether viewed as a violation of 
the Double Jeopardy Clause or simply as an affront to the due 
process guarantee of fundamental fairness, Alabama's pros- 
ecution of petitioner cannot survive constitutional scrutiny. 
I therefore must dissent. 



104 OCTOBER TERM, 1985 

SyUabus 474 U. S. 

MILLER v. FENTON, SUPERINTENDENT, RAHWAY 
STATE PRISON, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 
THE THIRD CIRCUIT 

No. 84-5786. Argued October 16, 1985 Decided December 3, 1985 

Petitioner, after a 58-minute interrogation at the New Jersey State Police 
Barracks, confessed to a murder. The New Jersey trial court rejected 
his motion to suppress the confession, and the jury found him guilty of 
first-degree murder. The New Jersey Superior Court Appellate Divi- 
sion reversed, finding as a matter of law that the confession was the 
result of compulsion and thus was impermissible under the Fourteenth 
Amendment's due process guarantee. The New Jersey Supreme Court 
reversed, finding, after examining the "totality of all the surrounding 
circumstances," that the interrogation was proper and that the resulting 
confession, being voluntary, had been properly admitted into evidence. 
Petitioner then sought a writ of habeas corpus in Federal District Court, 
which dismissed the petition without an evidentiary hearing. The Court 
of Appeals affirmed, holding that the voluntariness of a confession is a 
"factual issue" within the meaning of 28 U. S. C. 2254(d), which pro- 
vides that state-court findings of fact, with certain exceptions, "shall 
be presumed to be correct" in a federal habeas corpus proceeding, and 
that accordingly federal review of the New Jersey Supreme Court's 
determination that petitioner's confession was voluntary was limited to 
whether that court applied the proper legal test and whether its factual 
conclusions were supported by the record. Under this standard, the 
Court of Appeals concluded that the District Court's denial of the habeas 
corpus petition was proper. 

Held: The voluntariness of a confession is not an issue of fact entitled to 
the 2254(d) presumption but is a legal question meriting independent 
consideration in a federal habeas corpus proceeding. Pp. 109-118. 

(a) There is no support in this Court's decisions for the suggestion that 
the enactment of 2254(d) in 1966 altered this Court's prior confession 
cases holding that the ultimate issue of "voluntariness" is a legal ques- 
tion requiring independent federal determination. More importantly, 
2254(d)'s history undermines any argument that Congress intended 
that the ultimate question of the admissibility of a confession be treated 
as a "factual issue" within the meaning of that provision. Pp. 109-112. 

(b) In addition to considerations of stare decisis and congressional in- 
tent, the nature of the "voluntariness" inquiry itself lends support to the 



MILLEE v. FENTON 105 

104 Opinion of the Court 

holding in this case. Moreover, the practical considerations that have 
led this Court to find other issues within the scope of the 2254(d) pre- 
sumption are absent in the confession context. Unlike such issues as 
the impartiality of a juror or competency to stand trial, assessments of 
credibility and demeanor are not crucial to the proper resolution of the 
ultimate issue of voluntariness. And the critical events surrounding the 
taking of a confession almost invariably occur, not in open court, but in a 
secret and more coercive environment. Pp. 112-118. 
741 F. 2d 1456, reversed and remanded. 

O'CONNOR, J. , delivered the opinion of the Court, in which BURGER, 
C. J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, POWELL, and 
STEVENS, JJ., joined. REHNQUIST, J., filed a dissenting opinion, post, 
p. 118. 

Paul Martin Klein argued the cause for petitioner. With 
him on the briefs were Thomas S. Smith and Claudia Van 
Wyk. 

Anne C. Paskow, Deputy Attorney General of New Jer- 
sey, argued the cause for respondents. With her on the 
brief were Irwin I. Kimmelman, Attorney General, and 
Allan J. Nodes and Debra L. Stone, Deputy Attorneys 
General. * 

JUSTICE O'CONNOR delivered the opinion of the Court. 

Under 28 U. S. C. 2254(d), state-court findings of fact 
"shall be presumed to be correct" in a federal habeas cor- 
pus proceeding unless one of eight enumerated exceptions ap- 
plies. 1 The question presented is whether the voluntariness 

* Charles S. Sims filed a brief for the American Civil Liberties Union 
et al. as armci curiae urging reversal. 

1 In pertinent part, 28 U. S. C. 2254(d) provides: 

"In any proceeding instituted in a Federal Court by an application for a 
writ of habeas corpus by a person in custody pursuant to the judgment of a 
State court, a determination after a hearing on the merits of a factual issue, 
made by a State court of competent jurisdiction . . . shall be presumed to 
be correct, unless . . . 

"(8) . . . the Federal court . . . concludes that such factual determination is 
not supported by the record as a whole." 



106 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

of a confession is an issue of fact entitled to the 2254(d) 
presumption. 

I 

On the morning of August 13, 1973, a stranger approached 
the rural New Jersey home of 17-year-old Deborah Margolin 
and told her that a heifer was loose at the foot of her drive- 
way. She set out alone to investigate and never returned. 
Later that day, her mutilated body was found in a nearby 
stream. 

The victim's brothers were able to provide a description of 
the stranger's car and clothing. Based on this information, 
officers of the New Jersey State Police tentatively identified 
petitioner and, later that evening, found him at his place of 
employment. Petitioner responded to the officers' prelimi- 
nary inquiries and agreed to return to the police barracks for 
further questioning. Approximately two hours later, Detec- 
tive Charles Boyce led petitioner to an interrogation room 
and informed him of his Miranda rights. Petitioner inquired 
about the scope of his privilege to remain silent and then exe- 
cuted a written waiver, the validity of which is not at issue. 

A 58 minute long interrogation session ensued. During 
the course of the interview, Detective Boyce told petitioner 
that Ms. Margolin had just died. That statement, which 
Boyce knew to be untrue, supported another officer's earlier, 
and equally false, suggestion that the victim was still alive 
and could identify her attacker. App. 16-17; Record 109 and 
305. Detective Boyce also told petitioner that he had been 
identified at the Margolin home earlier in the day. In fact, 
Ms. Margolin's brothers had only provided a general descrip- 
tion of the stranger's car and clothing. Finally, Detective 
Boyce indicated that blood stains had been found on petition- 
er's front stoop. No such evidence was introduced at trial, 
and respondents do not now contend that it ever in fact 
existed. 

Throughout the interview, Detective Boyce presented 
himself as sympathetic to petitioner's plight. On several 



MILLER v. FENTON 107 

104 Opinion of the Court 

occasions, he stated that he did not consider petitioner to be a 
criminal because the perpetrator of the deed had a "mental 
problem" and needed medical help rather than punishment. 
App. 19. 2 Eventually, petitioner fully confessed to the 
crime. After doing so, he lapsed into what Detective Boyce 
described as a "state of shock." Record 84-85. Repeated 

2 The following exchange is representative of the tone of the 
interrogation. 

"Boyce: 'Frank, look, you want help, don't you, Frank?* 
"Miller: 'Yes, uh huh, yes, but yet I'm, I'm not going to admit to some- 
thing that, that I wasn't involved in. ' 

"Boyce: We don't want you to, all I want you to do is talk to me, that's all. 
I'm not talking about admitting to anything Frank. I want you to talk to 
me. I want you to tell me what you think. I want you to tell me how you 
think about this, what you think about this?' 
"Miller: 'What I think about it?' 
"Boyce: 'Yeah.' 

"Miller: 'I think whoever did it really needs help.' 

"Boyce: 'And that's what I think and that's what I know. They don't, 
they don't need punishment, right? Like you said, they need help.' 
"Miller: 'Right.' 

"Boyce: 'Now, don't you think it's better if someone knows that he or she 
has a mental problem to come forward with it and say, look, I've, I've, I've 
done these acts, I'm responsible for this, but I want to be helped, I couldn't 
help myself, I had no control of myself and if I'm examined properly you'll 
find out that's the case.' 

" 'Okay. [L]isten Frank, [i]f I promise to, you know, do all I can with the 
psychiatrist and everything, and we get the proper help for you . . . will 
you talk to me about it.' 

"Miller: *I can't talk to you about something I'm not . . .' 
"Boyce: 'Alright, listen Frank, alright, honest. I know, I know what's 
going on inside you, Frank. I want to help you, you know, between us 
right now. . . . You've got to talk to me about it. This is the only way 
we'll be able to work it out. I mean, you know, listen, I want to help you, 
because you are in my mind, you are not responsible. You are not respon- 
sible, Frank. Frank, what's the matter?' 
"Miller: 'I feel bad.'" App. 17-22. 



108 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

efforts to rouse him from his stupor failed, and the police 
summoned an ambulance to transport him to the hospital. 

The trial court rejected petitioner's motion to suppress the 
confession, and the jury found petitioner guilty of murder in 
the first degree. The Superior Court Appellate Division re- 
versed, finding as a matter of law that the confession was the 
result of "intense and mind bending psychological compul- 
sion" and therefore was impermissible under the Fourteenth 
Amendment's guarantee of due process. App. 53. Over 
three dissents, the Supreme Court of New Jersey reversed 
again. State v. Miller, 76 N. J. 392, 388 A. 2d 218 (1978). 
After examining the "totality of all the surrounding circum- 
stances," including petitioner's educational level, age, and 
awareness of his Miranda rights, the court found that the 
interrogation "did not exceed proper bounds," and that the 
resulting confession, being voluntary, had been properly ad- 
mitted into evidence. Id. , at 402-405, 388 A. 2d, at 223-224. 

Petitioner then sought a writ of habeas corpus in the 
United States District Court for the District of New Jersey. 
That court dismissed the application without an evidentiary 
hearing. A divided panel of the Court of Appeals for the 
Third Circuit affirmed. 741 F. 2d 1456 (1984). Relying on 
Circuit precedent, 3 the court held that the voluntariness of 
a confession is a "factual issue" within the meaning of 28 
U. S. C. 2254(d). Accordingly, federal review of the New 
Jersey Supreme Court's determination that petitioner's con- 
fession was voluntary was "limited to whether the state court 
applied the proper legal test, and whether [its] factual conclu- 
sions . . . [were] supported on the record as a whole." 741 
F. 2d, at 1462. Under this standard, the court concluded, 



3 The Court of Appeals relied on an earlier decision of that court holding 
that the "voluntariness" of a waiver of Miranda rights was entitled to the 
2254(d) presumption. Patterson v. Cuyler, 729 F. 2d 925, 930 (1984). 
The present case presents no occasion for us to address the question 
whether federal habeas courts must accord the statutory presumption of 
correctness to state-court findings concerning the validity of a waiver. 



MILLER v. FENTON 109 

104 Opinion of the Court 

the District Court's denial of the petition for habeas relief 
was proper. 

Because the Courts of Appeals have reached differing 
conclusions on whether state-court voluntariness determina- 
tions are entitled to the 2254(d) presumption of correctness, 
and because of the issue's importance to the administration 
of criminal justice, we granted certiorari. 471 U. S. 1003 
(1985). Compare Brantley v. McKaskle, 722 F. 2d 187, 188 
(CAS 1984) "([V]oluntariness of a confession is a mixed ques- 
tion of law and fact"), with Alexander v. Smith, 582 F. 2d 
212, 217 (CA2) (state-court voluntariness determination enti- 
tled to 2254(d) presumption), cert, denied, 439 U, S. 990 
(1978). We now reverse and remand. 

II 

This Court has long held that certain interrogation tech- 
niques, either in isolation or as applied to the unique charac- 
teristics of a particular suspect, are so offensive to a civilized 
system of justice that they must be condemned under the 
Due Process Clause of the Fourteenth Amendment. Brown 
v. Mississippi, 297 U. S. 278 (1936), was the wellspring of 
this notion, now deeply embedded in our criminal law. 
Faced with statements extracted by beatings and other 
forms of physical and psychological torture, the Court held 
that confessions procured by means "revolting to the sense of 
justice" could not be used to secure a conviction. Id. , at 286. 
On numerous subsequent occasions the Court has set aside 
convictions secured through the admission of an improperly 
obtained confession. See, e. g., Mincey v. Arizona, 437 
U. S. 385 (1978); Haynes v. Washington, 373 U. S. 503 
(1963); Ashcraft v. Tennessee, 322 U. S. 143 (1944); Cham- 
bers v. Florida, 309 U, S. 227, 235-238 (1940). Although 
these decisions framed the legal inquiry in a variety of differ- 
ent ways, usually through the "convenient shorthand" of ask- 
ing whether the confession was "involuntary," Blackburn v. 
Alabama, 361 U. S. 199, 207 (1960), the Court's analysis has 



110 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

consistently been animated by the view that "ours is an accu- 
satorial and not an inquisitorial system," Rogers v. Rich- 
mond, 365 U. S. 534, 541 (1961), and that, accordingly, tac- 
tics for eliciting inculpatory statements must fall within the 
broad constitutional boundaries imposed by the Fourteenth 
Amendment's guarantee of fundamental fairness. Indeed, 
even after holding that the Fifth Amendment privilege 
against compulsory self-incrimination applies in the context 
of custodial interrogations, Miranda v. Arizona, 384 U. S. 
436, 478 (1966), and is binding on the States, Malloy v. 
Hogan, 378 U. S. 1, 6 (1964), the Court has continued to 
measure confessions against the requirements of due process. 
See, e. g., Mincey v. Arizona, supra, at 402; Beecher v. 
Alabama, 389 U. S. 35, 38 (1967) (per curiam). 

Without exception, the Court's confession cases hold that 
the ultimate issue of "voluntariness" is a legal question 
requiring independent federal determination. See, e. g., 
Haynes v. Washington, supra, at 515-516; Ashcraft v. Ten- 
nessee, supra, at 147-148. As recently as 1978, the Court 
reaffirmed that it was "not bound by" a state-court volun- 
tariness finding and reiterated its historic "duty to make an 
independent evaluation of the record." Mincey v. Arizona, 
supra, at 398. That duty, as Mincey makes explicit, is not 
limited to instances in which the claim is that the police 
conduct was "inherently coercive." Ashcraft v. Tennessee, 
supra, at 154. It applies equally when the interrogation 
techniques were improper only because, in the particular cir- 
cumstances of the case, the confession is unlikely to have 
been the product of a free and rational will. See Mincey v. 
Arizona, supra, at 401. Because the ultimate issue in both 
categories of cases is the same whether the State has ob- 
tained the confession in a manner that comports with due 
process the decisions leave no doubt that our independent 
obligation to decide the constitutional question is identical. 
Mincey, Ashcraft, and many of the early decisions applying 
the independent-determination rule in confession cases came 



MILLER v. FENTON 111 

104 Opinion of the Court 

to the Court on direct appeal from state-court judgments. 
The rule, however, is no less firmly established in cases com- 
ing to the federal system on application for a writ of habeas 
corpus. Davis v. North Carolina, 384 U. S. 737 (1966), re- 
solved the issue with unmistakable clarity. There, the State 
had admitted into evidence a confession elicited from an im- 
poverished, mentally deficient suspect who had been held 
incommunicado for 16 days with barely adequate nourish- 
ment. Expressly relying on the direct-appeal cases, the 
Court stated unequivocally that state-court determinations 
concerning the ultimate question of the voluntariness of a 
confession are not binding in a federal habeas corpus proceed- 
ing. Id., at 741-742. 

Davis was decided four months before 28 U. S. C. 
2254(d) was signed into law. Act of Nov. 2, 1966, Pub. L. 
89-711, 80 Stat. 1105. Respondent contends that, whatever 
may have been the case prior to 1966, the enactment of 
2254(d) in that year fundamentally altered the nature of fed- 
eral habeas review of state voluntariness findings. That 
suggestion finds no support in this Court's decisions. See, 
e. g., Boulden v. Holman, 394 U. S. 478, 480 (1969) (finding 
confession voluntary after making "an independent study of 
the entire record"); Frazier v. Cupp, 394 U. S. 731, 739 
(1969) (examining "totality of the circumstances" to assess 
admissibility of confession). More importantly, the history 
of 2254(d) undermines any argument that Congress in- 
tended that the ultimate question of the admissibility of a 
confession be treated a "factual issue" within the meaning of 
that provision. The 1966 amendment was an almost verba- 
tim codification of the standards delineated in Townsend v. 
Sain, 372 U. S. 293 (1963), for determining when a district 
court must hold an evidentiary hearing before acting on a ha- 
beas petition. When a hearing is not obligatory, Townsend 
held, the federal court "ordinarily should . . . accept the facts 
as found" in the state proceeding. Id., at 318. Congress 
elevated that exhortation into a mandatory presumption of 



112 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

correctness. But there is absolutely no indication that it in- 
tended to alter Townsend's understanding that the "ultimate 
constitutional question" of the admissibility of a confession 
was a "mixed questio[n] of fact and law" subject to plenary 
federal review. Id., at 309, and n. 6. 

In short, an unbroken line of cases, coming to this Court 
both on direct appeal and on review of applications to lower 
federal courts for a writ of habeas corpus, forecloses the 
Court of Appeals' conclusion that the "voluntariness" of a 
confession merits something less than independent federal 
consideration. To be sure, subsidiary factual questions, 
such as whether a drug has the properties of a truth serum, 
id., at 306, or whether in fact the police engaged in the 
intimidation tactics alleged by the defendant, LaVallee v. 
Delle Rose, 410 U. S. 690, 693-695 (1973) (per curiam), 
are entitled to the 2254(d) presumption. And the federal 
habeas court, should, of course, give great weight to the con- 
sidered conclusions of a coequal state judiciary. Culombe v. 
Connecticut, 367 U. S. 568, 605 (1961) (opinion of Frank- 
furter, J.). But, as we now reaffirm, the ultimate ques- 
tion whether, under the totality of the circumstances, the 
challenged confession was obtained in a manner compatible 
with the requirements of the Constitution is a matter for 
independent federal determination. 

Ill 

The Court of Appeals recognized that treating the volun- 
tariness of a confession as an issue of fact was difficult to 
square with "fifty years of caselaw" in this Court. 741 F. 2d, 
at 1462. It believed, however, that this substantial body of 
contrary precedent was not controlling in light of our more 
recent decisions addressing the scope of the 2254(d) pre- 
sumption of correctness. See Waimuright v. Witt, 469 U. S. 
412, 429 (1985) (trial court's determination that a prospective 
juror in a capital case was properly excluded for cause enti- 
tled to presumption); Patton v. Yount, 467 U. S. 1025 (1984) 



MILLER u FENTON 113 

104 Opinion of the Court 

(impartiality of an individual juror); Rushen v. Spain, 464 
U. S. 114 (1983) (per curiam) (effect of ex parte com- 
munication on impartiality of individual juror); Maggio v. 
Fulford, 462 U. S. Ill (1983) (per curiam) (competency to 
stand trial); Marshall v. Lonberger, 459 U. S. 422, 431-437 
(1983) (determination that defendant received and under- 
stood sufficient notice of charges against him to render guilty 
plea voluntary). We acknowledge that the Court has not 
charted an entirely clear course in this area. We reject, 
however, the Court of Appeals' conclusion that these case- 
specific holdings tacitly overturned the longstanding rule 
that the voluntariness of a confession is a matter for inde- 
pendent federal determination. 

In the 2254(d) context, as elsewhere, the appropriate 
methodology for distinguishing questions of fact from ques- 
tions of law has been, to say the least, elusive. See Bose 
Corp. v. Consumers Union of United States, Inc., 466 U. S. 
485 (1984); Baumgartner v. United States, 322 U. S. 665, 671 
(1944). A few principles, however, are by now well estab- 
lished. For example, that an issue involves an inquiry into 
state of mind is not at all inconsistent with treating it as 
a question of fact. See, e. g., Maggio v. Fulford, supra. 
Equally clearly, an issue does not lose its factual character 
merely because its resolution is dispositive of the ultimate 
constitutional question. See Dayton Board of Education v. 
Brinkman, 443 U. S. 526, 534 (1979) (finding of intent to dis- 
criminate subject to "clearly erroneous" standard of review). 
But beyond these elemental propositions, negative in form, 
the Court has yet to arrive at "a rule or principle that will 
unerringly distinguish a factual finding from a legal con- 
clusion." Pullman-Standard v. Swint, 456 U. S. 273, 288 
(1982). 

Perhaps much of the difficulty in this area stems from the 
practical truth that the decision to label an issue a "question 
of law," a "question of fact," or a "mixed question of law and 
fact" is sometimes as much a matter of allocation as it is of 



114 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

analysis. See Monaghan, Constitutional Fact Review, 85 
Colum. L. Rev. 229, 237 (1985). At least in those instances 
in which Congress has not spoken and in which the issue falls 
somewhere between a pristine legal standard and a simple 
historical fact, the fact/law distinction at times has turned on 
a determination that, as a matter of the sound administration 
of justice, one judicial actor is better positioned than another 
to decide the issue in question. Where, for example, as with 
proof of actual malice in First Amendment libel cases, the rel- 
evant legal principle can be given meaning only through its 
application to the particular circumstances of a case, the 
Court has been reluctant to give the trier of fact's conclusions 
presumptive force and, in so doing, strip a federal appellate 
court of its primary function as an expositor of law. See 
Base Corp. v. Consumers Union of United States, Inc., 466 
U. S., at 503. Similarly, on rare occasions in years past the 
Court has justified independent federal or appellate review 
as a means of compensating for "perceived shortcomings of 
the trier of fact by way of bias or some other factor. ..." 
Id., at 518 (REHNQUIST, J., dissenting). See, e. g., Haynes 
v. Washington, 373 U. S., at 516; Watts v. Indiana, 338 
U. S. 49, 52 (1949) (opinion of Frankfurter, J.). Cf. Norris 
v. Alabama, 294 U. S. 587 (1935). 

In contrast, other considerations often suggest the appro- 
priateness of resolving close questions concerning the status 
of an issue as one of "law" or "fact" in favor of extending 
deference to the trial court. When, for example, the issue 
involves the credibility of witnesses and therefore turns 
largely on an evaluation of demeanor, there are compelling 
and familiar justifications for leaving the process of applying 
law to fact to the trial court and according its determinations 
presumptive weight. Patton v. Yount, supra, and Wain- 
wright v. Witt, supra, are illustrative. There the Court 
stressed that the state trial judge is in a position to assess 
juror bias that is far superior to that of federal judges review- 
ing an application for a writ of habeas corpus. Principally 



MILLER v. FENTON 115 

104 Opinion of the Court 

for that reason, the decisions held, juror bias merits treat- 
ment as a "factual issue" within the meaning of 2254(d) not- 
withstanding the intimate connection between such deter- 
minations and the constitutional guarantee of an impartial 
jury. 

For several reasons we think that it would be inappro- 
priate to abandon the Court's longstanding position that the 
ultimate question of the admissibility of a confession merits 
treatment as a legal inquiry requiring plenary federal re- 
view. We note at the outset that we do not write on a clean 
slate. "Very weighty considerations underlie the principle 
that courts should not lightly overrule past decisions." 
Moragne v. States Marine Lines, Inc., 398 U. S. 375, 403 
(1970). Thus, even assuming that contemporary consider- 
ations supported respondent's construction of the statute, 
nearly a half century of unwavering precedent weighs heavily 
against any suggestion that we now discard the settled rule 
in this area. Moreover, as previously noted, Congress pat- 
terned 2254(d) after Townsend v. Sain, 372 U. S. 293 
(1963), a case that clearly assumed that the voluntariness of a 
confession was an issue for independent federal determina- 
tion. Thus, not only are stare decisis concerns compelling, 
but, unlike in Marshall v. Lonberger, 459 U. S. 422 (1983), 
Rushen v. Spain, 464 U. S. 114 (1983), or any of our other 
recent 2254(d) cases, in the confession context we have the 
benefit of some congressional guidance in resolving whether 
the disputed issue falls outside of the scope of the 2254(d) 
presumption. Although the history of that provision is not 
without its ambiguities, it is certainly clear enough to tip the 
scales in favor of treating the voluntariness of a confession as 
beyond the reach of 2254(d). 

In addition to considerations of stare decisis and congres- 
sional intent, the nature of the inquiry itself lends support 
to the conclusion that "voluntariness" is a legal question 
meriting independent consideration in a federal habeas cor- 
pus proceeding. Although sometimes framed as an issue of 



116 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

"psychological fact," Culombe v. Connecticut, 367 U. S., at 
603, the dispositive question of the voluntariness of a confes- 
sion has always had a uniquely legal dimension. It is telling 
that in confession cases coming from the States, this Court 
has consistently looked to the Due Process Clause of the 
Fourteenth Amendment to test admissibility. See, e. g., 
Mincey v. Arizona, 437 U. S. , at 402. The locus of the right 
is significant because it reflects the Court's consistently held 
view that the admissibility of a confession turns as much 
on whether the techniques for extracting the statements, as 
applied to this suspect, are compatible with a system that 
presumes innocence and assures that a conviction will not be 
secured by inquisitorial means as on whether the defendant's 
will was in fact overborne. See, e. g., Gallegos v. Colorado, 
370 U. S. 49, 51 (1962) (suggesting that "a compound of two 
influences" requires that some confessions be condemned); 
Culombe v. Connecticut, supra, at 605 (describing voluntari- 
ness as an "amphibian"). This hybrid quality of the volun- 
tariness inquiry, 4 subsuming, as it does, a "complex of 
values," Blackburn v. Alabama, 361 U. S., at 207, itself mili- 
tates against treating the question as one of simple historical 
fact. 

Putting to one side whether "voluntariness" is analytically 
more akin to a fact or a legal conclusion, the practical consid- 
erations that have led us to find other issues within the scope 
of the 2254(d) presumption are absent in the confession con- 
text. First, unlike the impartiality of a given juror, Patton 
v. Yount, 467 U. S., at 1036, or competency to stand trial, 
Maggio v. Fulford, 462 U. S., at 117, assessments of credibil- 



4 The voluntariness rubric has been variously condemned as "useless," 
Paulson, The Fourteenth Amendment and the Third Degree, 6 Stan. L. 
Rev. 411, 430 (1954); "perplexing," Grano, Voluntariness, Free Will, and 
the Law of Confessions, 65 Va. L. Rev. 859, 863 (1979); and "legal 'double- 
talk/ " A. Beisel, Control Over Illegal Enforcement of the Criminal Law: 
Role of the Supreme Court 48 (1955). See generally Y. Kamisar, Police 
Interrogation and Confessions 1-25 (1980). 



MILLER v. FENTON 117 

104 Opinion of the Court 

ity and demeanor are not crucial to the proper resolution of 
the ultimate issue of "voluntariness." Of course, subsidiary 
questions, such as the length and circumstances of the in- 
terrogation, the defendant's prior experience with the legal 
process, and familiarity with the Miranda warnings, often 
require the resolution of conflicting testimony of police and 
defendant. The law is therefore clear that state-court find- 
ings on such matters are conclusive on the habeas court if 
fairly supported in the record and if the other circumstances 
enumerated in 2254(d) are inapplicable. But once such un- 
derlying factual issues have been resolved, and the moment 
comes for determining whether, under the totality of the cir- 
cumstances, the confession was obtained in a manner consist- 
ent with the Constitution, the state-court judge is not in an 
appreciably better position than the federal habeas court to 
make that determination. 

Second, the allocution of a guilty plea, Marshall v. Lon- 
berger, supra, the adjudication of competency to stand trial, 
Maggio v. Fulford, supra, and the determination of juror 
bias, Wainwright v. Witt, 469 U. S. 412 (1985), take place in 
open court on a full record. In marked contrast, the critical 
events surrounding the taking of a confession almost in- 
variably occur in a secret and inherently more coercive envi- 
ronment. Miranda v. Arizona, 384 U. S., at 458. These 
circumstances, standing alone, cannot be dispositive of the 
question whether a particular issue falls within the reach 
of 2254(d). However, together with the inevitable and 
understandable reluctance to exclude an otherwise reliable 
admission of guilt, Jackson v. Denno, 378 U. S. 368, 381 
(1964), they elevate the risk that erroneous resolution of 
the voluntariness question might inadvertently frustrate the 
protection of the federal right. See Haynes v. Washington, 
373 U. S., at 516; Ward v. Texas, 316 U. S. 547 (1942). We 
reiterate our confidence that state judges, no less than their 
federal counterparts, will properly discharge their duty to 
protect the constitutional rights of criminal defendants. We 



118 OCTOBER TERM, 1985 

REHNQUIST, J., dissenting 474 U. S. 

note only that in the confession context, independent federal 
review has traditionally played an important parallel role in 
protecting the rights at stake when the prosecution secures a 
conviction through the defendant's own admissions. 

IV 

After defending at length its conclusion that the voluntari- 
ness of a confession was entitled to the 2254(d) presump- 
tion, and after carefully analyzing the petitioner's confession 
under that standard, the Court of Appeals suggested in a 
brief footnote that it "would reach the same result" even 
were it to give the issue plenary consideration. 741 F. 2d, at 
1467, n. 21. Inasmuch as it is not clear from this language 
that the court did in fact independently evaluate the admissi- 
bility of the confession, and because, in any event, we think 
that the case warrants fuller analysis under the appropriate 
standard, we reverse the decision below and remand for 
further proceedings consistent with this opinion. 

It is so ordered. 

JUSTICE REHNQUIST, dissenting. 

The Court decides that the voluntariness of a confession is 
not an issue of fact presumed to be correct under 28 U. S. C. 
2254(d). I think it is difficult to sensibly distinguish the 
determination that a particular confession was voluntary 
from the determinations which we have held to be entitled to 
a presumption of correctness under 2254(d). See Sumner 
v. Mata, 449 U. S. 539 (1981); Sumner v. Mata, 455 U. S. 
591 (1982) (per curiam); Marshall v. Lonberger, 459 U. S. 
422, 431-437 (1983); Maggio v. Fulford, 462 U. S. Ill (1983) 
(per curiam); Rushen v. Spain, 464 U. S. 114 (1983) (per 
curiam); Patton v. Yount, 467 U. S. 1025, 1036-1038 (1984); 
and Wainurright v. Witt, 469 U. S. 412, 426-430 (1985). 
While the Court relies principally on stare decisis for the re- 
sult it reaches today, almost all the cases upon which it relies 
entailed direct review by this Court of state-court decisions 



MILLER tiFENTON 119 

104 REHNQUIST, J., dissenting 

rather than federal habeas review. But even if that differ- 
ence were deemed immaterial, it seems to me that s tare deti- 
sis is not a sufficient reason for excluding a finding as to the 
voluntariness of a confession from the presumption embodied 
in 2254(d). All of the recent cases cited evince a more 
reasoned approach to this issue than the interesting but 
somewhat mystical exegesis in cases such as Culmbe v. 
Cvnnectwt, 367 U. S. 568, 603-605 (1961) (opinion of Frank- 
furter, J.). 

I also disagree with the Court's decision to remand this 
case to the Court of Appeals for a second run at the voluntari- 
ness issue. I think the majority of that court made it clear 
that it had evaluated the admissibiUty of the confession under 
the correct standard as defined by this Court today. It is 
unfortunate that petitioner's challenge to his conviction for a 
murder which occurred 12 years ago should be the subject of 
additional and unnecessary litigation and delay. 

I respectfully dissent. 



120 OCTOBER TERM, 1985 

Per Curiam 474 U. S. 

LAKE COAL CO., INC. v. ROBERTS & SCHAEFER CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 
THE SIXTH CIRCUIT 

No. 84-1240. Argued October 15, 1985-Decided December 3, 1985 
Held: The parties' motion requesting decision of the questions presented 

in the petition for certiorari despite settlement of the underlying causes 

of action is denied; the Court of Appeals' judgment is vacated; and the 

case is remanded for dismissal of the cause as moot. 
751 F. 2d 386, vacated and remanded. 

Ronald G. Polly argued the cause for petitioner. With 
him on the briefs was Gene Smallwood, Jr. 

C. Kilmer Combs argued the cause and filed a brief for 
respondent. 

PER CURIAM. 

The motion of the parties requesting the Court to decide 
the questions presented in the petition for writ of certiorari 
despite complete settlement of the underlying causes of 
action is denied. See DeFunis v. Odegaard, 416 U. S. 312 
(1974). 

The judgment of the United States Court of Appeals for 
the Sixth Circuit is vacated, and the case is remanded to 
the United States District Court for the Eastern District of 
Kentucky with instructions to dismiss the cause as moot. 



UNITED STATES v. RIVERSIDE BAYVIEW HOMES, INC. 121 

Syllabus 



UNITED STATES v. RIVERSIDE BAYVIEW 
HOMES, INC., ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 
THE SIXTH CIRCUIT 

No. 84-701. Argued October 16, 1985 Decided December 4, 1985 

The Clean Water Act prohibits any discharge of dredged or fill materials 
into "navigable waters" defined as the "waters of the United States" 
unless authorized by a permit issued by the Army Corps of Engineers 
(Corps). Construing the Act to cover all "freshwater wetlands" that are 
adjacent to other covered waters, the Corps issued a regulation defining 
such wetlands as "those areas that are inundated or saturated by surface 
or ground water at a frequency and duration sufficient to support, and 
that under normal circumstances do support, a prevalence of vegetation 
typically adapted for life in saturated soil conditions." After respondent 
Riverside Bayview Homes, Inc. (hereafter respondent), began placing 
fill materials on its property near the shores of Lake St. Clair, Michigan, 
the Corps filed suit in Federal District Court to enjoin respondent from 
filling its property without the Corps' permission. Finding that re- 
spondent's property was characterized by the presence of vegetation 
requiring saturated soil conditions for growth, that the source of such 
soil conditions was ground water, and that the wetland on the property 
was adjacent to a body of navigable water, the District Court held that 
the property was wetland subject to the Corps' permit authority. The 
Court of Appeals reversed, construing the Corps' regulation to exclude 
from the category of adjacent wetlands and hence from that of "waters 
of the United States" wetlands that are not subject to flooding by adja- 
cent navigable waters at a frequency sufficient to support the growth of 
aquatic vegetation. The court took the view that the Corps' authority 
under the Act and its implementing regulations must be narrowly con- 
strued to avoid a taking without just compensation in violation of the 
Fifth Amendment. Under this construction, it was held that respond- 
ent's property was not within the Corps' jurisdiction, because its semi- 
aquatic characteristics were not the result of frequent flooding by the 
nearby navigable waters, and that therefore respondent was free to fill 
the property without obtaining a permit. 

Held: 

I. The Court of Appeals erred in concluding that a narrow reading of 
the Corps' regulatory jurisdiction over wetlands was necessary to avoid 
a taking problem. Neither the imposition of the permit requirement 



122 OCTOBER TERM, 1985 

Syllabus 474 U. S. 

itself nor the denial of a permit necessarily constitutes a taking. 
And the Tucker Act is available to provide compensation for takings 
that may result from the Corps' exercise of jurisdiction over wetlands. 
Pp. 126-129. 

2. The District Court's findings are not clearly erroneous and plainly 
bring respondent's property within the category of wetlands and thus of 
the "waters of the United States" as defined by the regulation in ques- 
tion. Pp. 129-131. 

3. The language, policies, and history of the Clean Water Act compel a 
finding that the Corps has acted reasonably in interpreting the Act to 
require permits for the discharge of material into wetlands adjacent to 
other "waters of the United States." Pp. 131-139. 

729 F. 2d 391, reversed. 

WHITE, J., delivered the opinion for a unanimous Court. 

Kathryn A. Oberly argued the cause for the United States. 
With her on the briefs were former Solicitor General Lee, 
Acting Solicitor General Fried, Assistant Attorney General 
Habicht, Deputy Solicitor General Claiborne, and Anne S. 
Almy. 

Edgar B. Washburn argued the cause for respondents. 
With him on the brief was Richard K. Gienapp. * 

*Briefs of amid curiae urging reversal were filed for the National 
Wildlife Federation et al. by Jerry Jackson, Frank J. Kelley, Attorney 
General of Michigan, and Louis Caruso, Solicitor General; and for the 
State of California et al. by John K. Van de Kamp, Attorney General of 
California, N. Gregory Taylor and Theodora Berger, Assistant Attorneys 
General, and Steven H. Kaufmann and David W. Hamilton, Deputy At- 
torneys General, Joseph I. Lieberman, Attorney General of Connecticut, 
Michael A. Lilly, Attorney General of Hawaii, Neil F. Hartigan, Attorney 
General of Illinois, and Jill Wine-Banks, Solicitor General, William J. 
Guste, Jr., Attorney General of Louisiana, Stephen H. Sachs, Attorney 
General of Maryland, Hubert H. Humphrey III, Attorney General of Min- 
nesota, William L. Webster, Attorney General of Missouri, Mike Greely, 
Attorney General of Montana, Robert M. Spire, Attorney General of 
Nebraska, Paul Bardacke, Attorney General of New Mexico, Lacy H. 
Thomburg, Attorney General of North Carolina, Arlene Violet, Attorney 
General of Rhode Island, W. /. Michael Cody, Attorney General of Ten- 
nessee, Jeffrey L. Amestoy, Attorney General of Vermont, Charlie Brown, 
Attorney General of West Virginia, and Bronson C. La Follette, Attorney 
General of Wisconsin. 



UNITED STATES v. RIVERSIDE BAYVIEW HOMES, INC. 123 
121 Opinion of the Court 

JUSTICE WHITE delivered the opinion of the Court. 

This case presents the question whether the Clean Water 
Act (CWA), 33 U. S. C. 1251 et seq., together with cer- 
tain regulations promulgated under its authority by the Army 
Corps of Engineers, authorizes the Corps to require landown- 
ers to obtain permits from the Corps before discharging fill 
material into wetlands adjacent to navigable bodies of water 
and their tributaries. 

I 

The relevant provisions of the Clean Water Act originated 
in the Federal Water Pollution Control Act Amendments of 
1972, 86 Stat. 816, and have remained essentially unchanged 
since that time. Under 301 and 502 of the Act, 33 
U. S. C. 1311 and 1362, any discharge of dredged or fill 
materials into "navigable waters" defined as the "waters of 
the United States" is forbidden unless authorized by a per- 
mit issued by the Corps of Engineers pursuant to 404, 33 
U. S. C. 1344. l After initially construing the Act to cover 
only waters navigable in fact, in 1975 the Corps issued in- 
terim final regulations redefining "the waters of the United 
States" to include not only actually navigable waters but also 
tributaries of such waters, interstate waters and their tribu- 
taries, and nonnavigable intrastate waters whose use or mis- 
use could affect interstate commerce. 40 Fed. Reg. 31320 



Briefs of amid curiae urging affirmance were filed for the American Pe- 
troleum Institute by Stark Ritchie and James K. Jackson; for the Citizens 
of Chincoteague for a Reasonable Wetlands Policy by Richard R. Nageotte; 
for the Mid-Atlantic Developers Association by Kenneth D. McPherson; 
and for the Pacific Legal Foundation et al. by Ronald A. Zumbrun and 
Sam Kazman. 

R. Sarah Compton and Robin S. Conrad filed a brief for the Chamber of 
Commerce of the United States as amicus curiae. 

1 With respect to certain waters, the Corps' authority may be trans- 
ferred to States that have devised federally approved permit programs. 
CWA 404(g), as added, 91 Stat. 1600, 33 U. S. C. 1344(g). Absent 
such an approved program, the Corps retains jurisdiction under 404 over 
all "waters of the United States." 



124 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

(1975). More importantly for present purposes, the Corps 
construed the Act to cover all "freshwater wetlands" that 
were adjacent to other covered waters. A "freshwater wet- 
land" was defined as an area that is "periodically inundated" 
and is "normally characterized by the prevalence of vegeta- 
tion that requires saturated soil conditions for growth and 
reproduction." 33 CFR 209.120(d)(2)<7&>> (1976). In 1977, 
the Corps refined its definition of wetlands by eliminating 
the reference to periodic inundation and making other minor 
changes. The 1977 definition reads as follows: 

"The term 'wetlands* means those areas that are in- 
undated or saturated by surface or ground water at a 
frequency and duration sufficient to support, and that 
under normal circumstances do support, a prevalence of 
vegetation typically adapted for life in saturated soil con- 
ditions. Wetlands generally include swamps, marshes, 
bogs and similar areas." 33 CFR 323.2(c) (1978). 

In 1982, the 1977 regulations were replaced by substantively 
identical regulations that remain in force today. See 33 
CFR 323.2 (1985). 2 

Respondent Riverside Bayview Homes, Inc. (hereafter re- 
spondent), owns 80 acres of low-lying, marshy land near the 
shores of Lake St. Clair in Macomb County, Michigan. In 
1976, respondent began to place fill materials on its property 
as part of its preparations for construction of a housing devel- 
opment. The Corps of Engineers, believing that the prop- 
erty was an "adjacent wetland" under the 1975 regulation 
defining "waters of the United States," filed suit in the 
United States District Court for the Eastern District of 
Michigan, seeking to enjoin respondent from filling the prop- 
erty without the permission of the Corps. 



2 The regulations also cover certain wetlands not necessarily adjacent to 
other waters. See 33 CFR 323.2(a)(2) and (3) (1985). These provisions 
are not now before us. 



UNITED STATES v. RIVERSIDE BAYVIEW HOMES, INC. 125 
121 Opinion of the Court 

The District Court held that the portion of respondent's 
property lying below 575.5 feet above sea level was a covered 
wetland and enjoined respondent from filling it without a 
permit. Civ. No. 77-70041 (Feb. 24, 1977) (App. to Pet. 
for Cert. 22a); Civ. No. 77-70041 (June 21, 1979) (App. to 
Pet. for Cert. 32a). Respondent appealed, and the Court of 
Appeals remanded for consideration of the effect of the inter- 
vening 1977 amendments to the regulation. 615 F. 2d 1363 
(1980). On remand, the District Court again held the prop- 
erty to be a wetland subject to the Corps' permit authority. 
Civ. No. 77-70041 (May 10, 1981) (App. to Pet. for Cert. 
42a). 

Respondent again appealed, and the Sixth Circuit re- 
versed. 729 F. 2d 391 (1984). The court construed the 
Corps' regulation to exclude from the category of adjacent 
wetlands and hence from that of "waters of the United 
States" wetlands that were not subject to flooding by adja- 
cent navigable waters at a frequency sufficient to support the 
growth of aquatic vegetation. The court adopted this con- 
struction of the regulation because, in its view, a broader def- 
inition of wetlands might result in the taking of private prop- 
erty without just compensation. The court also expressed 
its doubt that Congress, in granting the Corps jurisdiction to 
regulate the filling of "navigable waters," intended to allow 
regulation of wetlands that were not the result of flooding by 
navigable waters. 3 Under the court's reading of the regula- 
tion, respondent's property was not within the Corps' juris- 
diction, because its semiaquatic characteristics were not the 
result of frequent flooding by the nearby navigable waters. 
Respondent was therefore free to fill the property without 
obtaining a permit. 



8 In denying the Government's petition for rehearing, the panel reit- 
erated somewhat more strongly its belief that the Corps' construction of its 
regulation was "overbroad and inconsistent with the language of the Act. " 
729 F. 2d, at 401. 



126 OCTOBER TERM, 1986 

Opinion of the Court 474 U. S. 

We granted certiorari to consider the proper interpretation 
of the Corps' regulation defining "waters of the United 
States" and the scope of the Corps' jurisdiction under the 
Clean Water Act, both of which were called into question by 
the Sixth Circuit's ruling. 469 U. S. 1206 (1985). We now 
reverse. 

II 

The question whether the Corps of Engineers may demand 
that respondent obtain a permit before placing fill material on 
its property is primarily one of regulatory and statutory in- 
terpretation: we must determine whether respondent's prop- 
erty is an "adjacent wetland" within the meaning of the appli- 
cable regulation, and, if so, whether the Corps' jurisdiction 
over "navigable waters" gives it statutory authority to regu- 
late discharges of fill material into such a wetland. In this 
connection, we first consider the Court of Appeals' position 
that the Corps' regulatory authority under the statute and its 
implementing regulations must be narrowly construed to 
avoid a taking without just compensation in violation of the 
Fifth Amendment. 

We have frequently suggested that governmental land-use 
regulation may under extreme circumstances amount to a 
"taking" of the affected property. See, e. g., Williamson 
County Regional Planning Comm'n v. Hamilton Bank, 473 
U. S. 172 (1985); Penn Central Transportation Co. v. New 
York City, 438 U. S. 104 (1978). We have never precisely 
defined those circumstances, see id,, at 123-128; but our gen- 
eral approach was summed up in Agins v. Tiburon, 447 U. S. 
255, 260 (1980), where we stated that the application of land- 
use regulations to a particular piece of property is a taking 
only "if the ordinance does not substantially advance legiti- 
mate state interests ... or denies an owner economically via- 
ble use of his land." Moreover, we have made it quite clear 
that the mere assertion of regulatory jurisdiction by a gov- 
ernmental body does not constitute a regulatory taking. See 
Hodel v. Virginia Surface Mining & Reclamation Assn., 452 



UNITED STATES v. RIVERSIDE BAYVIEW HOMES, INC. 127 
121 Opinion of the Court 

U. S. 264, 293-297 (1981). The reasons are obvious. A re- 
quirement that a person obtain a permit before engaging in a 
certain use of his or her property does not itself "take" the 
property in any sense: after all, the very existence of a per- 
mit system implies that permission may be granted, leaving 
the landowner free to use the property as desired. More- 
over, even if the permit is denied, there may be other viable 
uses available to the owner. Only when a permit is denied 
and the effect of the denial is to prevent "economically viable" 
use of the land in question can it be said that a taking has 
occurred. 

If neither the imposition of the permit requirement itself 
nor the denial of a permit necessarily constitutes a taking, it 
follows that the Court of Appeals erred in concluding that a 
narrow reading of the Corps' regulatory jurisdiction over 
wetlands was "necessary" to avoid "a serious taking prob- 
lem." 729 F. 2d, at 398. 4 We have held that, in general, 
"[e]quitable relief is not available to enjoin an alleged taking 
of private property for a public use, duly authorized by law, 



4 Even were the Court of Appeals correct in concluding that a narrow- 
ing construction of the regulation is necessary to avoid takings of property 
through the application of the permit requirement, the construction 
adopted which requires a showing of frequent flooding before property 
may be classified as a wetland is hardly tailored to the supposed diffi- 
culty. Whether the denial of a permit would constitute a taking in any 
given case would depend upon the effect of the denial on the owner's ability 
to put the property to productive use. Whether the property was fre- 
quently flooded would have no particular bearing on this question, for 
overbroad regulation of even completely submerged property may consti- 
tute a taking. See, e. g., Kaiser Aetna v. United States, 444 U. S. 164 
(1979). Indeed, it may be more likely that denying a permit to fill fre- 
quently flooded property will prevent economically viable use of the prop- 
erty than denying a permit to fill property that is wet but not flooded. Of 
course, by excluding a large chunk of the Nation's wetlands from the regu- 
latory definition, the Court of Appeals' construction might tend to limit the 
gross number of takings that the permit program would otherwise entail; 
but the construction adopted still bears an insufficiently precise relation- 
ship with the problem it seeks to avoid. 



128 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

when a suit for compensation can be brought against the sov- 
ereign subsequent to a taking." Ruckelshaus v. Monsanto 
Co., 467 U. S. 986, 1016 (1984) (footnote omitted). This 
maxim rests on the principle that so long as compensation 
is available for those whose property is in fact taken, the 
governmental action is not unconstitutional. Williamson 
County, supra, at 194-195. For precisely the same reason, 
the possibility that the application of a regulatory program 
may in some instances result in the taking of individual pieces 
of property is no justification for the use of narrowing con- 
structions to curtail the program if compensation will in any 
event be available in those cases where a taking has oc- 
curred. Under such circumstances, adoption of a narrowing 
construction does not constitute avoidance of a constitutional 
difficulty, cf. Ashwander v. TVA, 297 U. S. 288, 341-356 
(1936) (Brandeis, J. , concurring); it merely frustrates permis- 
sible applications of a statute or regulation. 5 Because the 
Tucker Act, 28 U. S. C. 1491, which presumptively sup- 
plies a means of obtaining compensation for any taking that 
may occur through the operation of a federal statute, see 
Ruckelshaus v. Monsanto Co., supra, at 1017, is available to 
provide compensation for takings that may result from the 
Corps' exercise of jurisdiction over wetlands, the Court of 
Appeals' fears that application of the Corps' permit program 
might result in a taking did not justify the court in adopting a 



6 United States v. Security Industrial Bank, 459 U. S. 70 (1982), in 
which we adopted a narrowing construction of a statute to avoid a taking 
difficulty, is not to the contrary. In that case, the problem was that there 
was a substantial argument that retroactive application of a particular pro- 
vision of the Bankruptcy Code would in every case constitute a taking; the 
solution was to avoid the difficulty by construing the statute to apply only 
prospectively. Such an approach is sensible where it appears that there is 
an identifiable class of cases in which application of a statute will necessar- 
ily constitute a taking. As we have observed, this is not such a case: there 
is no identifiable set of instances in which mere application of the permit 
requirement will necessarily or even probably constitute a taking. The 
approach of adopting a limiting construction is thus unwarranted. 



UNITED STATES v. RIVERSIDE BAYVIEW HOMES, INC. 129 
121 Opinion of the Court 

more limited view of the Corps' authority than the terms of 
the relevant regulation might otherwise support. 6 

Ill 

Purged of its spurious constitutional overtones, the ques- 
tion whether the regulation at issue requires respondent to 
obtain a permit before filling its property is an easy one. 
The regulation extends the Corps' authority under 404 to all 
wetlands adjacent to navigable or interstate waters and their 
tributaries. Wetlands, in turn, are defined as lands that are 
"inundated or saturated by surface or ground water at a fre- 
quency and duration sufficient to support, and that under 
normal circumstances do support, a prevalence of vegetation 
typically adapted for life in saturated soil conditions." 33 
CFR 323.2(c) (1985) (emphasis added). The plain language 
of the regulation refutes the Court of Appeals' conclusion 
that inundation or "frequent flooding" by the adjacent body 
of water is a sine qua non of a wetland under the regulation. 
Indeed, the regulation could hardly state more clearly that 
saturation by either surface or ground water is sufficient to 
bring an area within the category of wetlands, provided that 

6 Because the Corps has now denied respondent a permit to fill its prop- 
erty, respondent may well have a ripe claim that a taking has occurred. 
On the record before us, however, we have no basis for evaluating this 
claim, because no evidence has been introduced that bears on the ques- 
tion of the extent to which denial of a permit to fill this property will 
prevent economically viable uses of the property or frustrate reasonable 
investment-backed expectations. In any event, this lawsuit is not the 
proper forum for resolving such a dispute: if the Corps has indeed effec- 
tively taken respondent's property, respondent's proper course is not to 
resist the Corps' suit for enforcement by denying that the regulation cov- 
ers the property, but to initiate a suit for compensation in the Claims 
Court. In so stating, of course, we do not rule that respondent will be 
entitled to compensation for any temporary denial of use of its property 
should the Corps ultimately relent and allow it to be filled. We have not 
yet resolved the question whether compensation is a constitutionally man- 
dated remedy for "temporary regulatory takings," see Williamson County 
Planning Comm'n v. Hamilton Bank, 473 U. S. 172 (1985), and this case 
provides no occasion for deciding the issue. 



130 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

the saturation is sufficient to and does support wetland 
vegetation. 

The history of the regulation underscores the absence of 
any requirement of inundation. The interim final regulation 
that the current regulation replaced explicitly included a 
requirement of "periodic] inundation." 33 CFR 209.120- 
(d)(2)(h) (1976). In deleting the reference to "periodic inun- 
dation" from the regulation as finally promulgated, the Corps 
explained that it was repudiating the interpretation of that 
language "as requiring inundation over a record period of 
years." 42 Fed. Reg. 37128 (1977). In fashioning its own 
requirement of "frequent flooding" the Court of Appeals im- 
properly reintroduced into the regulation precisely what the 
Corps had excised. 7 

Without the nonexistent requirement of frequent flooding, 
the regulatory definition of adjacent wetlands covers the 
property here. The District Court found that respondent's 
property was "characterized by the presence of vegetation 
that requires saturated soil conditions for growth and re- 



7 The Court of Appeals seems also to have rested its frequent-flooding 
requirement on the language in the regulation stating that wetlands en- 
compass those areas that "under normal circumstances do support" aquatic 
or semiaquatic vegetation. In the preamble to the final regulation, the 
Corps explained that this language was intended in part to exclude areas 
characterized by the "abnormal presence of aquatic vegetation in a non- 
aquatic area." 42 Fed. Reg. 37128 (1977). Apparently, the Court of Ap- 
peals concluded that the growth of wetlands vegetation in soils saturated 
by ground water rather than flooded by waters emanating from an adja- 
cent navigable water or its tributaries was "abnormal" within the meaning 
of the preamble. This interpretation is untenable in light of the explicit 
statements in both the regulation and its preamble that areas saturated by 
ground water can fall within the category of wetlands. It would be non- 
sensical for the Corps to define wetlands to include such areas and then in 
the same sentence exclude them on the ground that the presence of wet- 
land vegetation in such areas was abnormal. Evidently, the Corps had 
something else in mind when it referred to "abnormal" growth of wetlands 
vegetation namely, the aberrational presence of such vegetation in dry, 
upland areas. 



UNITED STATES v. RIVERSIDE BAYVIEW HOMES, INC. 131 
121 Opinion of the Court 

production," App. to Pet. for Cert. 24a, and that the source 
of the saturated soil conditions on the property was ground 
water. There is no plausible suggestion that these findings 
are clearly erroneous, and they plainly bring the property 
within the category of wetlands as defined by the current 
regulation. In addition, the court found that the wetland 
located on respondent's property was adjacent to a body of 
navigable water, since the area characterized by saturated 
soil conditions and wetland vegetation extended beyond the 
boundary of respondent's property to Black Creek, a naviga- 
ble waterway. Again, the court's finding is not clearly erro- 
neous. Together, these findings establish that respondent's 
property is a wetland adjacent to a navigable waterway. 
Hence, it is part of the "waters of the United States" as de- 
fined by 33 CFR 323.2 (1985), and if the regulation itself is 
valid as a construction of the term '^waters of the United 
States" as used in the Clean Water Act, a question which we 
now address, the property falls within the scope of the Corps' 
jurisdiction over "navigable waters" under 404 of the Act. 

IV 
A 

An agency's construction of a statute it is charged with 
enforcing is entitled to deference if it is reasonable and not 
in conflict with the expressed intent of Congress. Chemical 
Manufacturers Assn. v. Natural Resources Defense Coun- 
cil, Inc., 470 U. S. 116, 125 (1985); Chevron U. S. A. Inc. 
v. Natural Resources Defense Council, Inc., 467 U. S. 837, 
842-845 (1984). Accordingly, our review is liniited to the 
question whether it is reasonable, in light of the language, 
policies, and legislative history of the Act for the Corps to 
exercise jurisdiction over wetlands adjacent to but not reg- 
ularly flooded by rivers, streams, and other hydrographic 
features more conventionally identifiable as "waters." 8 

8 We are not called upon to address the question of the authority of the 
Corps to regulate discharges of fill material into wetlands that are not adja- 



132 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

On a purely linguistic level, it may appear unreasonable to 
classify 'lands," wet or otherwise, as "waters." Such a sim- 
plistic response, however, does justice neither to the problem 
faced by the Corps in defining the scope of its authority under 
404(a) nor to the realities of the problem of water pollution 
that the Clean Water Act was intended to combat. In deter- 
mining the limits of its power to regulate discharges under 
the Act, the Corps must necessarily choose some point at 
which water ends and land begins. Our common experience 
tells us that this is often no easy task: the transition from 
water to solid ground is not necessarily or even typically an 
abrupt one. Rather, between open waters and dry land may 
lie shallows, marshes, mudflats, swamps, bogs in short, a 
huge array of areas that are not wholly aquatic but neverthe- 
less fall far short of being dry land. Where on this contin- 
uum to find the limit of "waters" is far from obvious. 

Faced with such a problem of defining the bounds of its 
regulatory authority, an agency may appropriately look to 
the legislative history and underlying policies of its statutory 
grants of authority. Neither of these sources provides un- 
ambiguous guidance for the Corps in this case, but together 
they do support the reasonableness of the Corps' approach of 
defining adjacent wetlands as "waters" within the meaning of 
404(a). Section 404 originated as part of the Federal Water 
Pollution Control Act Amendments of 1972, which consti- 
tuted a comprehensive legislative attempt "to restore and 
maintain the chemical, physical, and biological integrity of 
the Nation's waters." CWA 101, 33 U. S. C. 1251. This 
objective incorporated a broad, systemic view of the goal of 
maintaining and improving water quality: as the House Re- 
port on the legislation put it, "the word 'integrity' . . . refers 
to a condition in which the natural structure and function of 
ecosystems [are] maintained." H. R. Rep. No. 92-911, p. 76 
(1972). Protection of aquatic ecosystems, Congress recog- 

cent to bodies of open water, see 33 CFR 323.2(a)(2) and (3) (1985), and 
we do not express any opinion on that question. 



UNITED STATES v. RIVERSIDE BAYVIEW HOMES, INC. 133 
121 Opinion of the Court 

nized, demanded broad federal authority to control pollution, 
for "[w]ater moves in hydrologic cycles and it is essential that 
discharge of pollutants be controlled at the source." S. Rep. 
No. 92-414, p. 77 (1972). 

In keeping with these views, Congress chose to define 
the waters covered by the Act broadly. Although the Act 
prohibits discharges into "navigable waters," see CWA 
301(a), 404(a), 502(12), 33 U. S. C. 1311(a), 1344(a), 
1362(12), the Act's definition of "navigable waters" as "the 
waters of the United States" makes it clear that the term 
"navigable" as used in the Act is of limited import. In adopt- 
ing this definition of "navigable waters," Congress evidently 
intended to repudiate limits that had been placed on federal 
regulation by earlier water pollution control statutes and to 
exercise its powers under the Commerce Clause to regulate 
at least some waters that would not be deemed "navigable" 
under the classical understanding of that term. See S. Conf. 
Rep. No. 92-1236, p. 144 (1972); 118 Cong. Rec. 33756-33757 
(1972) (statement of Rep. Dingell). 

Of course, it is one thing to recognize that Congress in- 
tended to allow regulation of waters that might not satisfy 
traditional tests of navigability; it is another to assert that 
Congress intended to abandon traditional notions of "waters" 
and include in that term "wetlands" as well. Nonetheless, 
the evident breadth of congressional concern for protection of 
water quality and aquatic ecosystems suggests that it is rea- 
sonable for the Corps to interpret the term "waters" to en- 
compass wetlands adjacent to waters as more conventionally 
defined. Following the lead of the Environmental Protec- 
tion Agency, see 38 Fed. Reg. 10834 (1973), the Corps has 
determined that wetlands adjacent to navigable waters do as 
a general matter play a key role in protecting and enhancing 
water quality: 

"The regulation of activities that cause water pollution 
cannot rely on ... artificial lines . . . but must focus on 
all waters that together form the entire aquatic system. 



134 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

Water moves in hydrologic cycles, and the pollution of 
this part of the aquatic system, regardless of whether it 
is above or below an ordinary high water mark, or mean 
high tide line, will affect the water quality of the other 
waters within that aquatic system. 

"For this reason, the landward limit of Federal juris- 
diction under Section 404 must include any adjacent 
wetlands that form the border of or are in reasonable 
proximity to other waters of the United States, as these 
wetlands are part of this aquatic system." 42 Fed. Reg. 
37128 (1977). 

We cannot say that the Corps' conclusion that adjacent 
wetlands are inseparably bound up with the "waters" of the 
United States based as it is on the Corps' and EP A's tech- 
nical expertise is unreasonable. In view of the breadth of 
federal regulatory authority contemplated by the Act itself 
and the inherent difficulties of defining precise bounds to 
regulable waters, the Corps' ecological judgment about the 
relationship between waters and their adjacent wetlands pro- 
vides an adequate basis for a legal judgment that adjacent 
wetlands may be defined as waters under the Act. 

This holds true even for wetlands that are not the result of 
flooding or permeation by water having its source in adjacent 
bodies of open water. The Corps has concluded that wet- 
lands may affect the water quality of adjacent lakes, rivers, 
and streams even when the waters of those bodies do not 
actually inundate the wetlands. For example, wetlands 
that are not flooded by adjacent waters may still tend to 
drain into those waters. In such circumstances, the Corps 
has concluded that wetlands may serve to filter and purify 
water draining into adjacent bodies of water, see 33 CFR 
320.4(b)(2)(vii) (1985), and to slow the flow of surface runoff 
into lakes, rivers, and streams and thus prevent flooding and 
erosion, see 320.4(b)(2)(iv) and (v). In addition, adjacent 
wetlands may "serve significant natural biological functions, 
including food chain production, general habitat, and nesting, 



UNITED STATES v. RIVERSIDE BAYVIEW HOMES, INC. 135 
121 Opinion of the Court 

spawning, rearing and resting sites for aquatic . . . species." 
320.4(b)(2)(i). In short, the Corps has concluded that wet- 
lands adjacent to lakes, rivers, streams, and other bodies of 
water may function as integral parts of the aquatic environ- 
ment even when the moisture creating the wetlands does not 
find its source in the adjacent bodies of water. Again, we 
cannot say that the Corps' judgment on these matters is un- 
reasonable, and we therefore conclude that a definition of 
"waters of the United States" encompassing all wetlands ad- 
jacent to other bodies of water over which the Corps has ju- 
risdiction is a permissible interpretation of the Act. Because 
respondent's property is part of a wetland that actually abuts 
on a navigable waterway, respondent was required to have a 
permit in this case. 9 

B 

Following promulgation of the Corps' interim final regula- 
tions in 1975, the Corps' assertion of authority under 404 
over waters not actually navigable engendered some congres- 
sional opposition. The controversy came to a head during 
Congress' consideration of the Clean Water Act of 1977, a 
major piece of legislation aimed at achieving "interim im- 
provements within the existing framework" of the Clean 
Water Act. H. R. Rep. No. 95-139, pp. 1-2 (1977). In the 



9 Of course, it may well be that not every adjacent wetland is of great 
importance to the environment of adjoining bodies of water. But the ex- 
istence of such cases does not seriously undermine the Corps' decision to 
define all adjacent wetlands as "waters." If it is reasonable for the Corps 
to conclude that in the majority of cases, adjacent wetlands have significant 
effects on water quality and the aquatic ecosystem, its definition can stand. 
That the definition may include some wetlands that are not significantly 
intertwined with the ecosystem of adjacent waterways is of little moment, 
for where it appears that a wetland covered by the Corps' definition is in 
fact lacking in importance to the aquatic environment or where its impor- 
tance is outweighed by other values the Corps may always allow develop- 
ment of the wetland for other uses simply by issuing a permit. See 33 
CFR 320.4(b)(4) (1985). 



136 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

end, however, as we shall explain, Congress acquiesced in 
the administrative construction. 

Critics of the Corps' permit program attempted to insert 
limitations on the Corps' 404 jurisdiction into the 1977 legis- 
lation: the House bill as reported out of committee proposed a 
redefinition of "navigable waters" that would have limited 
the Corps' authority under 404 to waters navigable in fact 
and their adjacent wetlands (defined as wetlands periodically 
inundated by contiguous navigable waters). H. R. 3199, 
95th Cong., 1st Sess., 16 (1977). The bill reported by the 
Senate Committee on Environment and Public Works, by 
contrast, contained no redefinition of the scope of the "navi- 
gable waters" covered by 404, and dealt with the perceived 
problem of overregulation by the Corps by exempting certain 
activities (primarily agricultural) from the permit require- 
ment and by providing for assumption of some of the Corps' 
regulatory duties by federally approved state programs. S. 
1952, 95th Cong., 1st Sess., 49(b) (1977). On the floor of 
the Senate, however, an amendment was proposed limiting 
the scope of "navigable waters" along the lines set forth in 
the House bill. 123 Cong. Rec. 26710-26711 (1977). 

In both Chambers, debate on the proposals to narrow the 
definition of navigable waters centered largely on the issue of 
wetlands preservation. See id., at 10426-10432 (House de- 
bate); id., at 26710-26729 (Senate debate). Proponents of a 
more limited 404 jurisdiction contended that the Corps' as- 
sertion of jurisdiction over wetlands and other nonnavigable 
"waters" had far exceeded what Congress had intended in 
enacting 404. Opponents of the proposed changes argued 
that a narrower definition of "navigable waters" for purposes 
of 404 would exclude vast stretches of crucial wetlands from 
the Corps' jurisdiction, with detrimental effects on wetlands 
ecosystems, water quality, and the aquatic environment gen- 
erally. The debate, particularly in the Senate, was lengthy. 
In the House, the debate ended with the adoption of a nar- 
rowed definition of "waters"; but in the Senate the limiting 



UNITED STATES u RIVERSIDE BAYVIEW HOMES, INC. 137 
121 Opinion of the Court 

amendment was defeated and the old definition retained. 
The Conference Committee adopted the Senate's approach: 
efforts to narrow the definition of "waters" were abandoned; 
the legislation as ultimately passed, in the words of Senator 
Baker, "retain[ed] the comprehensive jurisdiction over the 
Nation's waters exercised in the 1972 Federal Water Pollu- 
tion Control Act." 10 

The significance of Congress' treatment of the Corps' 404 
jurisdiction in its consideration of the Clean Water Act of 
1977 is twofold. First, the scope of the Corps' asserted 
jurisdiction over wetlands was specifically brought to Con- 
gress' attention, and Congress rejected measures designed to 
curb the Corps' jurisdiction in large part because of its con- 
cern that protection of wetlands would be unduly hampered 
by a narrowed definition of "navigable waters." Although 
we are chary of attributing significance to Congress' failure 
to act, a refusal by Congress to overrule an agency's con- 
struction of legislation is at least some evidence of the reason- 
ableness of that construction, particularly where the adminis- 
trative construction has been brought to Congress' attention 
through legislation specifically designed to supplant it. See 
Bob Jones University v. United States, 461 U. S. 574, 599- 
601 (1983); United States v. Rutherford, 442 U. S. 544, 554, 
and n. 10 (1979). 

Second, it is notable that even those who would have re- 
stricted the reach of the Corps' jurisdiction would have done 
so not by removing wetlands altogether from the definition of 
"waters of the United States," but only by restricting the 
scope of "navigable waters" under 404 to waters navigable 
in fact and their adjacent wetlands. In amending the defini- 
tion of "navigable waters" for purposes of 404 only, the 
backers of the House bill would have left intact the existing 
definition of "navigable waters" for purposes of 301 of the 



10 123 Cong. Rec. 39209 (1977); see also id., at 39210 (statement of Sen. 
Wallop); id., at 39196 (statement of Sen. Randolph); id., at 38950 (state- 
ment of Rep. Murphy); id., at 38994 (statement of Rep. Ambro). 



138 OCTOBER TERM, 1986 

Opinion of the Court 474 U. S. 

Act, which generally prohibits discharges of pollutants into 
navigable waters. As the House Report explained: " 'Navi- 
gable waters' as used in section 301 includes all of the waters 
of the United States including their adjacent wetlands." 
H. R. Rep. No. 95-139, p. 24 (1977). Thus, even those who 
thought that the Corps' existing authority under 404 was 
too broad recognized (1) that the definition of "navigable 
waters" then in force for both 301 and 404 was reasonably 
interpreted to include adjacent wetlands, (2) that the water 
quality concerns of the Clean Water Act demanded regula- 
tion of at least some discharges into wetlands, and (3) that 
whatever jurisdiction the Corps would retain over discharges 
of fill material after passage of the 1977 legislation should 
extend to discharges into wetlands adjacent to any waters 
over which the Corps retained jurisdiction. These views 
provide additional support for a conclusion that Congress in 
1977 acquiesced in the Corps' definition of waters as including 
adjacent wetlands. 

Two features actually included in the legislation that Con- 
gress enacted in 1977 also support the view that the Act 
authorizes the Corps to regulate discharges into wetlands. 
First, in amending 404 to allow federally approved state 
permit programs to supplant regulation by the Corps of cer- 
tain discharges of fill material, Congress provided that the 
States would not be permitted to supersede the Corps' juris- 
diction to regulate discharges into actually navigable waters 
and waters subject to the ebb and flow of the tide, "including 
wetlands adjacent thereto." CWA 404(g)(l), 33 U. S. C. 
1344(g)(l). Here, then, Congress expressly stated that the 
term "waters" included adjacent wetlands. 11 Second, the 



11 To be sure, 404(g)(l) does not conclusively determine the construc- 
tion to be placed on the use of the term "waters" elsewhere in the Act (par- 
ticularly in 502(7), which contains the relevant definition of "navigable 
waters"); however, in light of the fact that the various provisions of the Act 
should be read in pari materia, it does at least suggest strongly that the 
term "waters" as used in the Act does not necessarily exclude ''wetlands." 



UNITED STATES u RIVERSIDE BAYVIEW HOMES, INC. 139 
121 Opinion of the Court 

1977 Act authorized an appropriation of $6 million for comple- 
tion by the Department of Interior of a "National Wetlands 
Inventory" to assist the States "in the development and oper- 
ation of programs under this Act." CWA 208(i)(2), 33 
U. S. C. 1288(i)(2). The enactment of this provision re- 
flects congressional recognition that wetlands are a concern 
of the Clean Water Act and supports the conclusion that in 
defining the waters covered by the Act to include wetlands, 
the Corps is "implementing congressional policy rather than 
embarking on a frolic of its own." Red Lion Broadcasting 
Co. v. FCC, 395 U. S. 367, 375 (1969). 

C 

We are thus persuaded that the language, policies, and his- 
tory of the Clean Water Act compel a finding that the Corps 
has acted reasonably in interpreting the Act to require per- 
mits for the discharge of fill material into wetlands adjacent 
to the "waters of the United States." The regulation in 
which the Corps has embodied this interpretation by its 
terms includes the wetlands on respondent's property within 
the class of waters that may not be filled without a permit; 
and, as we have seen, there is no reason to interpret the 
regulation more narrowly than its terms would indicate. Ac- 
cordingly, the judgment of the Court of Appeals is 

Reversed. 



140 OCTOBER TERM, 1985 

SyUabus 474 U. S. 



THOMAS v. ARN, SUPERINTENDENT, OHIO 
REFORMATORY FOR WOMEN 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 
THE SIXTH CIRCUIT 

No. 84-5630. Argued October 7, 1985 Decided December 4, 1985 

Petitioner was convicted of homicide in an Ohio court, and ultimately the 
Ohio Supreme Court upheld the conviction. She sought habeas corpus 
relief in the Federal District Court, which referred the case to a Magis- 
trate, who issued a report recommending denial of the writ and contain- 
ing proposed findings and conclusions of law and a notice that failure to 
file objections within 10 days waived the right to appeal the District 
Court's order. Petitioner failed to file objections even though she had 
received an extension of time to do so, but the District Judge sua sponte 
reviewed the entire record de novo and dismissed the petition on the 
merits. On appeal, petitioner provided no explanation for her failure to 
object to the Magistrate's report. Without reaching the merits, the 
Court of Appeals affirmed, holding that petitioner had waived the right 
to appeal by failing to file objections to the Magistrate's report. 

Held: A court of appeals may adopt a rule conditioning appeal, when taken 
from a district court judgment that adopts a magistrate's recommenda- 
tion, upon the filing of objections with the district court identifying those 
issues on which further review is desired. Such a rule, at least when 
(as here) it incorporates clear notice to the litigants and an opportunity 
to seek an extension of time for filing objections, is a valid exercise of 
the court's supervisory power that does not violate either the Federal 
Magistrates Act or the Constitution. Pp. 145-155. 

(a) Here, the Court of Appeals intended to adopt a rule of procedure 
in the exercise of its supervisory power. Neither the intent nor the 
practical effect of the court's waiver rule is to restrict the court's own 
jurisdiction. Pp. 145-146. 

(b) The courts of appeals have supervisory powers that permit, at the 
least, the promulgation of procedural rules governing the management of 
litigation. The fact that the Sixth Circuit has deemed petitioner to have 
forfeited her statutory right to an appeal is not enough, standing alone, 
to invalidate the court's exercise of its supervisory power. Moreover, 
the Sixth Circuit's decision to require the filing of objections is supported 
by sound considerations of judicial economy. Pp. 146-148. 

(c) Neither the language nor the legislative history of the Federal 
Magistrates Act which provides that a litigant "may" file objections to 



THOMAS v. ARN 141 

140 Opinion of the Court 

the magistrate's report within 10 days and thus obtain de novo review by 
the district judge, 28 U. S. C. 636(b)(l)(C)- supports petitioner's ar- 
gument that the Act precludes the waiver rule adopted by the Sixth Cir- 
cuit. The Act does not require that the district court review the magis- 
trate's report under some lesser standard than de novo review when no 
objection is filed. Nor does the obligatory filing of objections under the 
Act extend only to findings of fact and not to the magistrate's conclusions 
of law. Moreover, the waiver of appellate review is not inconsistent 
with the Act's purposes. Pp. 148-153. 

(d) The waiver of appellate review does not violate Article III of the 
Constitution. Although a magistrate is not an Article III judge, a dis- 
trict court may refer dispositive motions to a magistrate for a recommen- 
dation so long as the entire process takes place under the district court's 
control and jurisdiction, and the judge exercises the ultimate authority 
to issue an appropriate order. The waiver of appellate review does not 
implicate Article III, because it is the district court, not the court of 
appeals, that must exercise supervision over the magistrate, and the 
waiver rule does not elevate the magistrate from an adjunct to the func- 
tional equivalent of an Article III judge. Nor does the waiver rule 
violate the Due Process Clause of the Fifth Amendment. Petitioner's 
statutory right of appeal was not denied; it was merely conditioned upon 
the filing of a piece of paper. Pp. 153-155. 
728 F. 2d 813, affirmed. 

MARSHALL, J., delivered the opinion of the Court, in which BURGER, 
C. J., and WHITE, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. 
BRENNAN, J., filed a dissenting opinion, in which BLACKMUN, J., joined, 
post, p. 156. STEVENS, J., filed a dissenting opinion, post, p. 157. 

Christopher D. Stanley argued the cause for petitioner. 
With him on the brief was Louis A. Jacobs. 

Richard David Drake, Assistant Attorney General of Ohio, 
argued the cause for respondent. With him on the brief was 
Anthony J. Celebrezze, Jr., Attorney General. 

JUSTICE MARSHALL delivered the opinion of the Court, 
In 1976, Congress amended 101 of the Federal Magis- 
trates Act, 28 U. S. C. 636, to provide that a United States 
district judge may refer dispositive pretrial motions, and 
petitions for writ of habeas corpus, to a magistrate, who 
shall conduct appropriate proceedings and recommend dispo- 



142 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

sitions. Pub. L. 94-577, 90 Stat. 2729. 1 The amendments 
also provide that any party that disagrees with the magis- 
trate's recommendations "may serve and file ^written objec- 
tions" to the magistrate's report, and thus obtain de novo 
review by the district judge. 2 The question presented is 
whether a court of appeals may exercise its supervisory pow- 
ers to establish a rule that the failure to file objections to the 
magistrate's report waives the right to appeal the district 
court's judgment. We hold that it may. 

I 

Petitioner was convicted by an Ohio court in 1978 of fatally 
shooting her common-law husband during an argument. 

1 Title 28 U. S. C. 636(b)(l)(B) provides: 

"[A] judge may also designate a magistrate to conduct hearings, including 
evidentiary hearings, and to submit to a judge of the court proposed find- 
ings of fact and recommendations for the disposition, by a judge of the 
court, of any motion excepted in subparagraph (A), of applications for 
posttrial relief made by individuals convicted of criminal offenses and of 
prisoner petitions challenging conditions of confinement. " 
The motions excepted in 636(b)(l)(A), and included by reference in 
subparagraph (B), are motions 

'for injunctive relief, for judgment on the pleadings, for summary judg- 
ment, to dismiss or quash an indictment or information made by the de- 
fendant, to suppress evidence hi a criminal case, to dismiss or to permit 
maintenance of a class action, to dismiss for failure to state a claim upon 
which relief can be granted, and to involuntarily dismiss an action." 

2 Title 28 U. S. C. 636(b)(l)(C) provides: 

"[T]he magistrate shall file his proposed findings and recommendations 
under subparagraph (B) with the court and a copy shall forthwith be mailed 
to all parties. 

"Within ten days after being served with a copy, any party may serve 
and file written objections to such proposed findings and recommendations 
as provided by rules of court. A judge of the court shall make a de novo 
determination of those portions of the report or specified proposed findings 
or recommendations to which objection is made. A judge of the court may 
accept, reject, or modify, in whole or in part, the findings or recommenda- 
tions made by the magistrate. The judge may also receive farther evi- 
dence or recommit the matter to the magistrate with instructions." 



THOMAS u ARN 143 

140 Opinion of the Court 

The evidence at trial showed that the victim was a violent 
man who had beaten petitioner on a number of occasions dur- 
ing the previous three years. Petitioner raised the issue of 
self-defense at trial, and sought to call two witnesses who 
would present expert testimony concerning the Battered 
Wife Syndrome. After conducting a voir dire of these wit- 
nesses in chambers, the trial court refused to admit the testi- 
mony, on the grounds that the jury did not need the assist- 
ance of expert testimony to understand the case and that the 
witnesses, who had not personally examined petitioner, could 
not testify about her state of mind at the time of the shooting. 
The Court of Appeals of Cuyahoga County reversed. 
State v. Thomas, 64 Ohio App. 2d 141, 411 N. E. 2d 845 
(1979). The court's syllabus 3 concluded that testimony con- 
cerning the Battered Wife Syndrome is admissible **to afford 
the jury an understanding of the defendant's state of mind at 
the time she committed the homicide." App. 9. The Ohio 
Supreme Court, on discretionary review, reversed. State v. 
Thomas, 66 Ohio St. 2d 518, 423 N. E. 2d 137 (1981). The 
court held that the testimony was irrelevant to the issue of 
self-defense, and that its prejudicial effect would outweigh its 
probative value. Having exhausted state remedies, peti- 
tioner sought habeas corpus relief in the United States Dis- 
trict Court for the Northern District of Ohio. The petition 
raised, inter alia, the question whether petitioner was denied 
a fair trial by the trial court's refusal to admit testimony con- 
cerning the Battered Wife Syndrome. Petitioner filed a 
memorandum of law in support of the petition. The District 
Judge, acting pursuant to 28 U. S. C. 636(b)(l)(B), referred 
the case, including petitioner's memorandum of law, to a 
Magistrate. The Magistrate did not hold a hearing. On 
May 11, 1982, the Magistrate issued his report, containing 
proposed findings of fact and conclusions of law and recorn- 

8 In Ohio, the court's syllabus contains the controlling law. See Engle 
v. Isaac, 456 U. S. 107, 111, n, 3 (1982), citing Haas v. State, 103 Ohio St. 
1, 7-8, 132 N. E. 158, 159-160 (1921). 



144 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

mending that the writ be denied. On the issue of the Bat- 
tered Wife Syndrome testimony, the Magistrate concluded 
that the trial court's failure to admit the proffered testimony 
had not impaired the fundamental fairness of the trial, and 
therefore was not an adequate ground for habeas corpus 
relief. 

The last page of the Magistrate's report contained the 
prominent legend: 

"ANY OBJECTIONS to this Report and Recommenda- 
tion must be filed with the Clerk of Courts within ten 
(10) days of receipt of this notice. Failure to file objec- 
tions within the specified time waives the right to appeal 
the District Court's order. See: United States v. Wal- 
ters, 638 F. 2d 947 (6th Cir. 1981)." 

Despite this clear notice, petitioner failed to file objections at 
any time. She sought and received an extension of time to 
file objections through June 15, 1982, on the grounds that 
"this case entails many substantive issues and counsel needs 
more time to write his brief." However, petitioner made no 
further submissions on the merits to the District Court. 
Notwithstanding petitioner's failure to file objections, the 
District Judge ma sponte "review[ed] . . . the entire record 
de novo," App. 59, and dismissed the petition on the merits. 
Petitioner sought and was granted leave to appeal. 

Petitioner's brief on appeal raised only the issue of the Bat- 
tered Wife Syndrome testimony. The brief provided no ex- 
planation for petitioner's failure to object to the Magistrate's 
report. Counsel for petitioner waived oral argument, and 
the case was decided on the briefs. The Court of Appeals for 
the Sixth Circuit affirmed. 728 F. 2d 813 (1984). Without 
reaching the merits, it held that petitioner had waived the 
right to appeal by failing to file objections to the Magistrate's 
report. Id. , at 815. The court relied upon its prior decision 
in United States v. Walters, 638 F. 2d 947 (1981), which es- 
tablished the prospective rule that failure to file timely objec- 
tions with the district court waives subsequent review in the 



THOMAS v. ARN 145 

140 Opinion of the Court 

court of appeals. We granted the petition for a writ of cer- 
tiorari, 470 U. S. 1027 (1985), and we now affirm. 

II 

In United States v. Walters, supra, the appellant failed to 
object to the Magistrate's report, and the District Court 
adopted that report as its disposition of the case. The appel- 
lant then brought an appeal. The Court of Appeals for the 
Sixth Circuit considered the threshold question whether the 
appellant's failure to apprise the District Court of its dis- 
agreement with the Magistrate's recommendation waived the 
right to appeal. The court held: 

"The permissive language of 28 U. S. C. 636 sug- 
gests that a party's failure to file objections is not a 
waiver of appellate review. However, the fundamental 
congressional policy underlying the Magistrate's Act to 
improve access to the federal courts and aid the efficient 
administration of justice is best served by our holding 
that a party shall file objections with the district court or 
else waive right to appeal. Additionally, through the 
exercise of our supervisory power, we hold that a party 
shall be informed by the magistrate that objections must 
be filed within ten days or further appeal is waived. 

"However, we give our ruling only prospective effect 
because rules of procedure should promote, not defeat 
the ends of justice . . . ." Id., at 949-950 (footnote and 
citations omitted). 

The nature of the rule and its prospective application dem- 
onstrate that the court intended to adopt a "rul[e] of proce- 
dure," id., at 950, in the exercise of its supervisory powers. 
Later opinions of the Sixth Circuit make it clear that the 
court views Walters in this way. See Patterson v. Mintzes, 
717 F. 2d 284, 286 (1983) ("In Walters . . . this Court promul- 
gated [a] rule of waiver"); United States v. Martin, 704 F. 2d 
267, 275 (1983) (Jones, J., concurring) (characterizing Wai- 



146 OCTOBER TERM, 1986 

Opinion of the Court 474 U. S. 

ters as "[r]ulemaking through the exercise of supervisory 
powers")- Thus, petitioner's first contention that the 
Court of Appeals has refused to exercise the jurisdiction that 
Congress granted it is simply inaccurate. The Court of 
Appeals expressly acknowledged that it had subject-matter 
jurisdiction over petitioner's appeal. 728 F. 2d, at 814. The 
Sixth Circuit has also shown that its rule is not jurisdictional 
by excusing the procedural default in a recent case. See 
Patterson v. Mintzes, supra (considering appeal on merits 
despite pro se litigant's late filing of objections). We there- 
fore conclude that neither the intent nor the practical effect 
of the Sixth Circuit's waiver rule is to restrict the court's own 
jurisdiction. 4 

Ill 

It cannot be doubted that the courts of appeals have super- 
visory powers that permit, at the least, the promulgation of 
procedural rules governing the management of litigation. 
Cf. Cuyler v. Sullivan, 446 U. S. 335, 346, n. 10 (1980) (ap- 
proving exercise of supervisory powers to require district 
court inquiry concerning joint representation of criminal de- 
fendants). Indeed, this Court has acknowledged the power 
of the courts of appeals to mandate "procedures deemed de- 
sirable from the viewpoint of sound judicial practice although 



4 The First, Second, Fourth, and Fifth Circuits have adopted waiver 
rules similar to the Sixth Circuit rule at issue in the present case. See 
Park Motor Mart, Inc. v. Ford Motor Co., 616 F. 2d 603 (CA1 1980); 
McCarthy v. Manson, 714 F. 2d 234, 237 (CA2 1983); United States v. 
Schronce, 727 F. 2d 91 (CA4), cert, denied, 467 U. S. 1208 (1984); United 
States v. Lewis, 621 F. 2d 1382, 1386 (CAS 1980), cert, denied, 450 U. S. 
935 (1981). The Ninth and Eleventh Circuits have concluded that the fail- 
ure to file objections waives only factual issues on the appeal. See Britt v. 
Simi Valley Unified School District, 708 F. 2d 452, 454 (CA9 1983) (order 
denying petition for rehearing); Nettles v. Wainwright, 677 F. 2d 404 (CAS 
1982) (en bane); but see Lorin Corp. v. Goto & Co., 700 F. 2d 1202, 
1205-1207 (CAS 1983) (rejecting waiver rule, at least where parties had not 
been notified that failure to object would waive appeal). In none of these 
cases have the courts spoken in jurisdictional terms. 



THOMAS v. ARN 147 

140 Opinion of the Court 

in nowise commanded by statute or by the Constitution." 
Cupp v. NoMghten, 414 U. S. 141, 146 (1973); see also Barker 
v. Wingo, 407 U. S. 514, 530, n. 29 (1972). 6 Had petitioner 
failed to comply with a scheduling order or pay a filing fee 
established by a court of appeals, that court could certainly 
dismiss the appeal. Cf. Link v. Wabash R. Co., 370 U. S. 
626 (1962) (recognizing "inherent power" of court to dismiss 
case for want of prosecution). The fact that the Sixth Cir- 
cuit has deemed petitioner to have forfeited her statutory 
right to an appeal is not enough, standing alone, to invalidate 
the court's exercise of its supervisory power. 

The Sixth Circuit's decision to require the filing of ob- 
jections is supported by sound considerations of judicial 
economy. The filing of objections to a magistrate's report 
enables the district judge to focus attention on those issues 
factual and legal that are at the heart of the parties' dis- 
pute. 6 The Sixth Circuit's rule, by precluding appellate 

5 This power rests on the firmest ground when used to establish rules of 
judicial procedure. See Beale, Reconsidering Supervisory Power in Crim- 
inal Cases: Constitutional and Statutory Limits on the Authority of the 
Federal Courts, 84 Colum. L. Rev. 1433, 1465 (1984) (federal courts have 
inherent authority to regulate "technical details and policies intrinsic to the 
litigation process"). The Courts of Appeals have often exercised that au- 
thority. See, e. g., Tingler v. Marshall, 716 F. 2d 1109, 1112 (CA6 1983) 
(establishing procedure for SUOL sponte dismissal of complaints); United 
States v. Florea, 541 F. 2d 568, 572 (CA6 1976) (prospective rule holding 
that contact between party's agent and juror is per se prejudicial), cert, 
denied, 430 U. S. 945 (1977); United States v. Schiavo, 504 F. 2d 1, 7-8 
(CA3) (en bane) (establishing procedures for enjoining publication of in- 
formation concerning criminal trial), cert, denied sub now. Ditter v. Phila- 
delphia Newspapers, Inc., 419 U. S. 1096 (1974). 

6 In the present case, the filing of objections could have resulted in a 
considerable saving of judicial time. The original petition contained sev- 
eral grounds for relief, but on appeal petitioner raised only the issue of the 
admissibility of expert testimony on the Battered Wife Syndrome. Had 
petitioner objected only to that aspect of the Magistrate's report, the Mag- 
istrate's review would have served to narrow the dispute for the District 
Judge, and petitioner would have preserved her right to appeal the exclu- 
sion of her expert testimony. 



148 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

review of any issue not contained in objections, prevents a 
litigant from "sandbagging" the district judge by failing to 
object and then appealing. Absent such a rule, any issue 
before the magistrate would be a proper subject for appellate 
review. This would either force the court of appeals to con- 
sider claims that were never reviewed by the district court, 
or force the district court to review every issue in every case, 
no matter how thorough the magistrate's analysis and even 
if both parties were satisfied with the magistrate's report. 
Either result would be an inefficient use of judicial resources. 
In short, "[t]he same rationale that prevents a party from 
raising an issue before a circuit court of appeals that was not 
raised before the district court applies here." United States 
v. Schronce, 727 F. 2d 91, 94 (CA4) (footnote omitted), cert, 
denied, 467 U. S. 1208 (1984). 

IV 

Even a sensible and efficient use of the supervisory power, 
however, is invalid if it conflicts with constitutional or stat- 
utory provisions. A contrary result "would confer on the 
judiciary discretionary power to disregard the considered 
limitations of the law it is charged with enforcing." United 
States v. Payner, 447 U. S. 727, 737 (1980). Thus we now 
consider whether the Sixth Circuit's waiver rule conflicts 
with statutory law or with the Constitution. 

A 

Petitioner argues that the Federal Magistrates Act pre- 
cludes the waiver rule adopted by the Sixth Circuit. Her 
argument focuses on the permissive nature of the statutory 
language. The statute provides that a litigant "may" file 
objections, and nowhere states that the failure to do so will 
waive an appeal. Petitioner cites the Eighth Circuit's con- 
clusion that "[o]ne would think that if Congress had wished 
such a drastic consequence to follow from the missing of the 
ten-day time limit, it would have said so explicitly." Lorin 
Corp. v. Goto & Co., 700 F. 2d 1202, 1206 (1983). However, 



THOMAS v. ARN 149 

140 Opinion of the Court 

we need not decide whether the Act mandates a waiver of 
appellate review absent objections. We hold only that it 
does not forbid such a rule. 

Section 636(b)(l)(C) provides that "[a] judge of the [dis- 
trict] court shall make a de novo determination of those por- 
tions of the report or specified proposed findings or recom- 
mendations to which objection is made." The statute does 
not on its face require any review at all, by either the district 
court or the court of appeals, of any issue that is not the sub- 
ject of an objection. Petitioner argues, however, that the 
statutory language and purpose implicitly require the district 
court to review a magistrate's report even if no party objects. 
If petitioner's interpretation of the statute is correct, then 
the waiver of appellate review, as formulated by the Sixth 
and other Circuits, proceeds from an erroneous assumption 
that the failure to object may constitute a procedural default 
waiving review even at the district court level. 7 Moreover, 
were the district judge required to review the magistrate's 
report in every case, the waiver of appellate review would 
not promote judicial economy as discussed in Part III, supra. 

Petitioner first argues that a failure to object waives only 
de novo review, and that the district judge must still review 
the magistrate's report under some lesser standard. How- 
ever, 636(b)(l)(C) simply does not provide for such review. 
This omission does not seem to be inadvertent, because Con- 
gress provided for a "clearly erroneous or contrary to law" 
standard of review of a magistrate's disposition of certain 
pretrial matters in 636(b)(l)(A). See Park Motor Mart, 
Inc. v. Ford Motor Co., 616 F. 2d 603, 605 (CA1 1980). Nor 

7 The Sixth Circuit, in Walters, cited with approval the First Circuit's 
decision in Park Motor Mart, which held that "a party 'may' file objections 
within ten days or he may not, as he chooses, but he 'shall' do so if he 
wishes farther consideration." 616 F. 2d, at 605; see Walters, 638 F. 2d, 
at 950. See also McCarthy v. Manson, 714 F. 2d, at 237 ("When a party 
fails to object timely to a magistrate's recommended decision, it waives any 
right to further judicial review of that decision") (footnote and citation 
omitted). 



150 OCTOBER TERM, 1986 

Opinion of the Court 474 U. S. 

does petitioner point to anything in the legislative history of 
the 1976 amendments mandating review under some lesser 
standard. We are therefore not persuaded that the statute 
positively requires some lesser review by the district court 
when no objections are filed. 

Petitioner also argues that, under the Act, the obligatory 
filing of objections extends only to findings of fact. She 
urges that Congress, in order to vest final authority over 
questions of law in an Article III judge, intended that the dis- 
trict judge would automatically review the magistrate's con- 
clusions of law. We reject, however, petitioner's distinction 
between factual and legal issues. Once again, the plain lan- 
guage of the statute recognizes no such distinction. 8 We 
also fail to find such a requirement in the legislative history. 

It does not appear that Congress intended to require dis- 
trict court review of a magistrate's factual or legal conclu- 
sions, under a de novo or any other standard, when neither 
party objects to those findings. The House and Senate Re- 
ports accompanying the 1976 amendments do not expressly 
consider what sort of review the district court should per- 
form when no party objects to the magistrate's report. See 
S. Rep. No. 94-625, pp. 9-10 (1976) (hereafter Senate Re- 
port); H. R. Rep. No. 94-1609, p. 11 (1976) (hereafter House 
Report). There is nothing in those Reports, however, that 
demonstrates an intent to require the district court to give 
any more consideration to the magistrate's report than the 
court considers appropriate. 9 Moreover, the Subcommittee 



8 This is so even though the category of dispositive matters subject to de 
novo review by the district judge as of right only upon filing of objections 
includes motions for judgment on the pleadings and dismissal for failure to 
state a claim on which relief can be granted, which consist exclusively of 
issues of law. See n. 1, supra. 

"Petitioner points to a passage in the House Report that quotes from 
Campbell v. United States District Court, 501 F. 2d 196, 206 (CA9), cert, 
denied, 419 U. S. 879 (1974). The Ninth Circuit concluded: "If neither 
party contests the magistrate's proposed findings of fact, the court may as- 
sume their correctness and decide the motion on the applicable law." See 



THOMAS v. ARN 151 

140 Opinion of the Court 

that drafted and held hearings on the 1976 amendments had 
before it the guidelines of the Administrative Office of the 
United States Courts concerning the efficient use of magis- 
trates. Those guidelines recommended to the district courts 
that "[w]here a magistrate makes a finding or ruling on a 
motion or an issue, his determination should become that of 
the district court, unless specific objection is filed within a 
reasonable time." See Jurisdiction of United States Magis- 
trates, Hearings on S. 1283 before the Subcommittee on Im- 
provements in Judicial Machinery of the Senate Committee 
on the Judiciary, 94th Cong., 1st Sess., 24 (1975) (emphasis 
added) (hereafter Senate Hearings). The Committee also 
heard Judge Metzner of the Southern District of New York, 
the chairman of a Judicial Conference Committee on the ad- 
ministration of the magistrate system, testify that he person- 
ally followed that practice. See id., at 11 ("If any objections 
come in, ... I review [the record] and decide it. If no objec- 
tions come in, I merely sign the magistrate's order")- 10 The 

House Report, at 3. However, that statement was part of a longer quota- 
tion setting a de novo review standard when objections are filed. The 
House Report stated that a House amendment, which called for de novo 
review in the same circumstances, was "adopted" from the Ninth Circuit's 
decision in Campbell. House Report, at 3. We believe, therefore, that 
the House Report used the language from Campbell only to support a 
de novo standard upon the filing of objections, and not for any other 
proposition. 

10 Indeed, Judge Metzner specifically addressed the difference between a 
magistrate's ruling on a nondispositive motion, which Congress clearly in- 
tended to be final' unless a judge of the court exercises his ultimate author- 
ity to reconsider the magistrate's determination," Senate Report, at 8, and 
a ruling on a dispositive motion. Judge Metzner concluded: "I think we 
are talking more about form, than we are of substance." Senate Hearings, 
at 12. 

Moreover, both Judge Metzner and the Judicial Conference were of 
the opinion that Congress could probably vest magistrates with the au- 
thority to make a final decision on dispositive motions without violating 
Article III, and that the language of 636(b)(l)(B), calling for the magis- 
trate to make only recommendations on dispositive motions, was adopted 
out of an abundance of caution. See Senate Hearings, at 6 (statement of 



152 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

Judicial Conference of the United States, which supported 
the de novo standard of review eventually incorporated in 
636(b)(l)(C), opined that in most instances no party would 
object to the magistrate's recommendation, and the litigation 
would terminate with the judge's adoption of the magistrate's 
report. See Senate Hearings, at 35, 37. Congress appar- 
ently assumed, therefore, that any party who was dissatis- 
fied for any reason with the magistrate's report would file ob- 
jections, and those objections would trigger district court 
review. 11 There is no indication that Congress, in enacting 
636(b)(l)(C), intended to require a district judge to review a 
magistrate's report to which no objections are filed. It did 
not preclude treating the failure to object as a procedural de- 
fault, waiving the right to further consideration of any sort. 
We thus find nothing in the statute or the legislative history 
that convinces us that Congress intended to forbid a rule such 
as the one adopted by the Sixth Circuit. 

Nor is the waiver of appellate review inconsistent with the 
purposes of the Act. The Act grew out of Congress' desire 
to give district judges "additional assistance" in dealing with 
a caseload that was increasing far more rapidly than the num- 
ber of judgeships. Mathews v. Weber, 423 U. S. 261, 268 
(1976). ^ Congress did not intend district judges "to devote a 

Judge Metzner); id., at 35 (report of Judicial Conference of the United 
States). While we express no view on the accuracy of those opinions, we 
think they are relevant to Congress' intent. See also House Report, at 8 
("it is not feasible for every judicial act, at every stage of the proceeding, to 
be performed by 'a judge of the court' "). 

11 See Senate Hearings, at 32 (statement of William P. Westphal, Chief 
Counsel) (filing objections as provided in the statute "is the procedure for 
them to follow, if they feel aggrieved by any of these motions"). 

12 The 1976 amendments were prompted by this Court's decision in 
Wingo v. Wedding, 418 U. S. 461 (1974). That case held that Congress 
had not intended, in enacting the Federal Magistrates Act in 1968, to per- 
mit a magistrate to conduct an evidentiary hearing on a habeas corpus peti- 
tion. Congress enacted the 1976 amendments to "restat[e] and clarif [y]" 
Congress' intent to permit magistrates to hold evidentiary hearings and 
perform other judicial functions. See Senate Report, at 3. 



THOMAS v. ARN 153 

140 Opinion of the Court 

substantial portion of their available time to various proce- 
dural steps rather than to the trial itself. " House Report, 
at 7. Nor does the legislative history indicate that Congress 
intended this task merely to be transferred to the court of ap- 
peals. It seems clear that Congress would not have wanted 
district judges to devote time to reviewing magistrate's re- 
ports except to the extent that such review is requested by 
the parties or otherwise necessitated by Article III of the 
Constitution. We now turn to the latter question. 



Petitioner contends that the waiver of appellate review 
violates Article III and the Due Process Clause of the Fifth 
Amendment. Article III vests the judicial power of the 
United States in judges who have life tenure and protection 
from decreases in salary. 18 Although a magistrate is not an 
Article III judge, this Court has held that a district court 
may refer dispositive motions to a magistrate for a recom- 
mendation so long as "the entire process takes place under 
the district court's total control and jurisdiction," United 
States v. Raddatz, 447 U. S. 667, 681 (1980), and the judge 
" *exercise[s] the ultimate authority to issue an appropriate 
order/" id., at 682, quoting Senate Report, at 3. The Sixth 
Circuit's rule, as petitioner sees it, permits a magistrate to 
exercise the Article III judicial power, because the rule fore- 
closes meaningful review of a magistrate's report at both the 
district and appellate levels if no objections are filed. 

We find that argument untenable. The waiver of appel- 
late review does not implicate Article III, because it is the 



18 Article III, 1, of the Constitution provides: 

"The judicial Power of the United States, shall be vested in one supreme 
Court, and in such inferior Courts as the Congress may from time to time 
ordain and establish. The Judges, both of the supreme and inferior 
Courts, shall hold their Offices during good Behaviour, and shall, at stated 
Times, receive for their Services, a Compensation, which shall not be di- 
minished during their Continuance in Office." 



154 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

district court, not the court of appeals, that must exercise 
supervision over the magistrate. Even assuming, however, 
that the effect of the Sixth Circuit's rule is to permit both the 
district judge and the court of appeals to refuse to review a 
magistrate's report absent timely objection, we do not be- 
lieve that the rule elevates the magistrate from an adjunct to 
the functional equivalent of an Article III judge. The rule 
merely establishes a procedural default that has no effect on 
the magistrate's or the court's jurisdiction. The district 
judge has jurisdiction over the case at all times. He retains 
full authority to decide whether to refer a case to the magis- 
trate, to review the magistrate's report, and to enter judg- 
ment. Any party that desires plenary consideration by the 
Article III judge of any issue need only ask. Moreover, 
while the statute does not require the judge to review an 
issue de novo if no objections are filed, it does not preclude 
further review by the district judge, sua sponte or at the re- 
quest of a party, under a de novo or any other standard. In- 
deed, in the present case, the District Judge made a de novo 
determination of the petition despite petitioner's failure even 
to suggest that the Magistrate erred. The Sixth Circuit's 
rule, therefore, has not removed "'the essential attributes of 
the judicial power,'" Northern Pipeline Co. v. Marathon 
Pipe Line Co., 458 U. S. 50, 77 (1982) (plurality opinion), 
quoting Crowell v. Benson, 285 U. S. 22, 51 (1932), from the 
Article III tribunal. 14 



"The plurality in Northern Pipeline, and the concurrence in Raddatz, 
noted that the magistrate himself remains under the district court's au- 
thority. The magistrate is appointed, and subject to removal, by the dis- 
trict court. See Northern Pipeline, 458 U. S. , at 79, and n. 30; Raddatz, 
447 U. S., at 685 (BLACKMUN, J., concurring) ("[T]he only conceivable dan- 
ger of a 'threat' to the ^independence' of the magistrate comes from within, 
rather than without, the judicial department"). Those observations, of 
course, are also relevant here, and again weigh on the side of concluding 
that a magistrate remains an adjunct even though the district court and the 
court of appeals may refuse to entertain issues that are not raised in prop- 
erly filed objections. 



THOMAS v. ARN 155 

140 Opinion of the Court 

Petitioner claims also that she was denied her statutory 
right of appeal, in violation of the Due Process Clause. That 
right was not denied, however; it was merely conditioned 
upon the filing of a piece of paper. Petitioner was notified in 
unambiguous terms of the consequences of a failure to file, 
and deliberately failed to file nevertheless. We recently 
reiterated our longstanding maxim that 'the State certainly 
accords due process when it terminates a claim for failure 
to comply with a reasonable procedural or evidentiary rule." 
Logan v. Zimmerman Brush Co., 455 U. S. 422, 437 (1982). 
The same rationale applies to the forfeiture of an appeal, and 
we believe that the Sixth Circuit's rule is reasonable. Liti- 
gants subject to the Sixth Circuit's rule are afforded "'an 
opportunity . . . granted at a meaningful time and in a mean- 
ingful manner/" ibid., quoting Armstrong v. Manzo, 380 
U. S. 545, 552 (1965), to obtain a hearing by the Court of 
Appeals. We also emphasize that, because the rule is a 
nonjurisdictional waiver provision, the Court of Appeals 
may excuse the default in the interests of justice. 15 



We hold that a court of appeals may adopt a rule condition- 
ing appeal, when taken from a district court judgment that 
adopts a magistrate's recommendation, upon the filing of 
objections with the district court identifying those issues on 
which further review is desired. Such a rule, at least when 
it incorporates clear notice to the litigants and an opportunity 
to seek an extension of time for filing objections, is a valid 
exercise of the supervisory power that does not violate either 
the Federal Magistrates Act or the Constitution. The judg- 
ment of the Court of Appeals is 

Affirmed. 



15 Cf. Fed. Rule Crim. Proc. 52(b) (court may correct plain error despite 
failure of party to object). We need not decide at this time what standards 
the courts of appeals must apply in considering exceptions to their waiver 
rules. 



156 OCTOBER TERM, 1985 

BRENNAN, J., dissenting 474 U. S. 

JUSTICE BRENNAN, with whom JUSTICE BLACKMUN joins, 
dissenting. 

Under the rule adopted by the United States Court of Ap- 
peals for the Sixth Circuit and sanctioned by this Court, a 
party waives his right to appeal the judgment of the district 
court by failing to file timely objections to a magistrate's 
report. Because this rule conflicts with the plain language 
of the Federal Magistrate's Act, I dissent. 

The Magistrate's Act states that "any party may serve and 
file written objections to [the magistrate's] proposed findings 
and recommendations. ... A judge of the court shall make 
a de novo determination of those portions of the report or 
specified proposed findings or recommendations to which 
objection is made." 28 U. S. C. 636(b)(l)(C). The Act 
clearly specifies the penalty for a party's failure to file objec- 
tions to the magistrate's report the party loses his right 
to de novo review by the district court. The Act does not 
require a party to file objections. And it does not, contrary 
to the Sixth Circuit's rule, provide that a party's failure to 
file objections deprives him of the right to any review by the 
district court,* or by the court of appeals. Rather, the dis- 
trict court judge retains the power, and indeed the obliga- 
tion, to "accept, reject, or modify" the magistrate's findings 
and recommendations. 28 U. S. C. 636(b)(l)(C). The Act 
leaves unaffected a party's right to appeal the judgment of 
the district court to the court of appeals. 

A habeas applicant is entitled to appeal only the final order 
of the district court. 28 U. S. C. 2253. I fail to under- 
stand how petitioner could have waived her right to appeal 
a final order before that order was rendered. The majority 
attempts to justify this result by characterizing the Sixth 
Circuit's rule as a simple exercise of its supervisory powers. 

*The absence of an objection cannot "reliev[e] the district court of its 
obligation to act judicially, to decide for itself whether the Magistrate's 
report is correct." Lorin Corp. v. Goto & Co., 700 F. 2d 1202, 1206 (CAS 
1983). 



THOMAS u ARN 157 

140 STEVENS, J., dissenting 

While I do not question the Court of Appeals* authority to 
promulgate reasonable procedural rules, I would not sanction 
a rule that imposes a penalty for failure to file objections 
beyond that contemplated by Congress, Because the Sixth 
Circuit's "supervisory rule" unlawfully deprives petitioner of 
her statutory right to appeal the District Court's judgment, I 
respectfully dissent. 

JUSTICE STEVENS, dissenting. 

The waiver rule adopted by the United States Court of Ap- 
peals for the Sixth Circuit is neither required nor prohibited 
by the Federal Magistrates Act. As a product of that court 's 
supervisory power, it need not conform to the practice fol- 
lowed in other circuits. Hence, despite the appearance of a 
conflict among the circuits, the interest in uniform interpre- 
tation of federal law is not implicated and this Court might 
have been well advised simply to deny the petition for certio- 
rari. Since the Court has elected to review the application of 
the Sixth Circuit's rule, however, I believe it should modify it 
in one respect. 

As the Court demonstrates, in most cases it is surely per- 
missible to treat the failure to file timely objections to a mag- 
istrate's report as a waiver of the right to review, not only in 
the district court, but in the court of appeals as well. But 
our precedents often recognize an exception to waiver 
rules namely, when a reviewing court decides the merits of 
an issue even though a procedural default relieved it of the 
duty to do so. See, e. g., Oklahoma City v. Tuttle, 471 
U. S. 800, 815-816 (1985) (reaching merits despite failure to 
object to jury instruction because Court of Appeals over- 
looked default); On Lee v. United States, 343 U. S. 747, 75O, 
n. 3 (1952) ("Though we think the Court of Appeals would 
have been within its discretion in refusing to consider the 
point, their having passed on it leads us to treat the merits 
also"). It is for this reason that we may disregard a proce- 
dural default in a state trial court if a state appellate court 
addresses the federal issue. E. g., Ulster County Court v. 



158 OCTOBER TERM, 1985 

STEVENS, J., dissenting 474 U. S. 

AM, 442 U, S, 140, 149 (1979); Raty v. Ohio, 360 U, S, 
423, 436-437 (1959). In such cases, the reasons for relying 
on the procedural default as a bar to further review are gen- 
erally, if not always, outweighed by the interest in having the 
merits of the issue correctly resolved. 

A similar exception should be recognized in this case. 
When the district court elects to exercise its power to 
review a magistrate's report de mx> and renders an opinion 
resolving an issue on the merits, there is no danger of "sand- 
bagging" the district judge. See ante, at 148. Moreover, if 
the district judge has concluded that there is enough merit in 
a claim to warrant careful consideration and explanation de- 
spite the litigant's failure to object before the magistrate, the 
interest in minimizing the risk of error should prevail over 
the interest in requiring strict compliance with procedural 
rules. Because the District Court decided the merits of peti- 
tioner's claim in this case, I would hold that she has a right to 
review in the Court of Appeals. To that admittedly limited 
extent, I respectfully dissent. 



MAINE v. MOULTON 159 

Syllabus 

MAINE v. MOULTON 

CEKTIORARI TO THE SUPREME JUDICIAL COURT OF MAINE 
No. 84-786. Argued October 8, 1985 Decided December 10, 1986 

Respondent, represented by retained counsel, pleaded not guilty in a 
Maine Superior Court to charges of theft by receiving of automotive 
vehicles and parts. Respondent's codefendant Colson informed the 
police that he had received anonymous threatening telephone calls 
regarding the pending charges and indicated that he wished to talk to the 
police about the charges. Before meeting with the police, Colson met 
with respondent to plan for the upcoming trial, and, according to Colson, 
respondent suggested the possibility of killing a State's witness. There- 
after, Colson and his lawyer met with police officers, and Colson con- 
fessed to his participation with respondent in committing the crimes for 
which they had been indicted and agreed to testify against respondent 
and cooperate in the prosecution of respondent on the pending charges if 
no further charges were brought against Colson. Colson also consented 
to have a recording device placed on his telephone, and agreed to record 
any anonymous threats or any calls from respondent. Having learned 
from recorded telephone calls that Colson and respondent were going to 
meet to plan defense strategy for the upcoming trial, the police obtained 
Colson's consent to be equipped with a body wire transmitter to record 
the meeting. Although Colson was instructed not to attempt to ques- 
tion respondent at the meeting, his remarks in fact caused respondent 
to make incriminating statements. The trial court denied respondent's 
pretrial motion to suppress the recorded statements he made to Colson 
as having been obtained in violation of respondent's right to the assist- 
ance of counsel under the Sixth and Fourteenth Amendments on the 
ground that the recordings were made for other reasons. Some of re- 
spondent's recorded incriminating statements made at the meeting with 
Colson were admitted in evidence, and respondent was convicted of 
some of the charges. The Supreme Judicial Court of Maine reversed 
and remanded for a new trial. 

Held: Respondent's Sixth Amendment right to the assistance of counsel 
was violated by the admission at trial of incriminating statements made 
by him to Colson after indictment and at the meeting of the two to plan 
defense strategy for the upcoming trial. Pp. 168-180. 

(a) The assistance of counsel is necessary to safeguard the other pro- 
cedural safeguards provided to the accused by the criminal justice proc- 
ess. Accordingly, the right to the assistance of counsel is not limited to 



160 OCTOBER TERM, 1985 

Syllabus 474 U. S. 

participation in a trial; to deprive a person of counsel during the period 
prior to trial may be more damaging than denial of counsel during the 
trial itself. Whatever else it may mean, the right to counsel means at 
least that a person is entitled to the help of a lawyer at or after the time 
that judicial proceedings have been initiated against him. Pp. 168-170. 

(b) Once the right to counsel has attached and been asserted, the 
State must honor it. At the very least, the prosecutor and police have 
an affirmative obligation not to act in a manner that circumvents and 
thereby dilutes the protection afforded by the right to counsel. Spano 
v. New York, 360 U. S. 315; Massiah v. United States, 377 U. S. 201; 
United States v, Henry, 447 U. S. 264. Pp. 170-174. 

(c) The State misreads Massiah, supra, and Henry, supra, in con- 
tending that the decisive fact in those cases was that the police set up 
the confrontation between the accused and a police agent at which in- 
criminating statements were elicited, and that thus respondent's Sixth 
Amendment rights were not violated here because he rather than Colson 
initiated the recorded conversations. The Sixth Amendment guaran- 
tees the accused, at least after the initiation of formal charges, the right 
to rely on counsel as a "medium" between him and the State. Knowing 
exploitation by the State of an opportunity to confront the accused with- 
out counsel being present is as much a breach of the State's obligation 
not to circumvent the right to the assistance of counsel as is the inten- 
tional creation of such an opportunity. Pp. 174-176. 

(d) In this case, the State clearly violated respondent's Sixth Amend- 
ment right when it arranged to record conversations between respond- 
ent and its undercover informant, Colson. When the police requested 
that Colson wear a body wire transmitter to the meeting with respond- 
ent, the police knew that respondent would make statements that he had 
a constitutional right not to make to their agent prior to consulting with 
counsel. By concealing the fact that Colson was an agent of the State, 
the police denied respondent the opportunity to consult with counsel 
and thus denied him the assistance of counsel guaranteed by the Sixth 
Amendment. Pp. 176177. 

(e) There is no merit to the argument that the incriminating state- 
ments obtained by the police should not be suppressed because the police 
had other, legitimate reasons for listening to respondent's conversations 
with Colson, namely, to investigate respondent's alleged plan to kill the 
State's witness and to insure Colson's safety. This same argument was 
rejected in Massiah, supra, where the Court held that to allow the ad- 
mission of evidence obtained from the accused in violation of his Sixth 
Amendment rights whenever the police assert the need to investigate 
other crimes to justify their surveillance invites abuse by law enforce- 
ment personnel in the form of fabricated investigations and risks the 



MAINE v. MOULTON 161 

159 Opinion of the Court 

evisceration of the Sixth Amendment right. Evidence obtained that is 
relevant to crimes as to which the Sixth Amendment right has not yet 
attached may be admissible at a trial on those charges. Pp. 178-180. 
481 A. 2d 155, affirmed. 

BRENNAN, J., delivered the opinion of the Court, in which MARSHALL, 
BLACKMUN, POWELL, and STEVENS, JJ., joined. BURGER, C. J., filed a 
dissenting opinion, in which WHITE and REHNQUIST, JJ., joined, and in 
Parts I and III of which O'CONNOR, J., joined, post, p. 181. 

Wayne S. Moss, Assistant Attorney General of Maine, 
argued the cause for petitioner. With him on the briefs 
were James E. Tierney, Attorney General, and Charles K. 
Leadbetter, James T. Kilbreth III, and Eric E. Wright, 
Assistant Attorneys General. 

Anthony W. Beardsley, by appointment of the Court, 470 
U. S. 1082, argued the cause for respondent. With him on 
the brief were David P. Cluchey and Charles S. Sims.* 

JUSTICE BRENNAN delivered the opinion of the Court. 

The question presented in this case is whether respond- 
ent's Sixth Amendment right to the assistance of counsel was 
violated by the admission at trial of incriminating statements 
made by him to his codefendant, a secret government inform- 
ant, after indictment and at a meeting of the two to plan de- 
fense strategy for the upcoming trial. 

I 

On the night of January 15, 1981, police officers in Belfast, 
Maine, responded to a fire call in the vicinity of the Belfast 
Dodge automobile dealership. Arriving at the scene, the 
officers discovered a burning Chevrolet dump truck which 
they recognized as a vehicle that had been reported stolen. 1 

* Solicitor General Lee, Assistant Attorney General Trott, Deputy So- 
licitor General Prey, Edwin S. Kneedler, and Kathleen A. Felton filed a 
brief for the United States as amicus curiae urging reversal. 

1 Indeed, in pursuing an anonymous tip received earlier that day that the 
stolen truck could be found at Belfast Dodge, one of the officers had con- 
ducted a consent search of the main building of the dealership facility. 



162 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

After examining the burning truck, the officers searched a 
building located on the Belfast Dodge property. This build- 
ing was not part of the dealership, but was leased to respond- 
ent Perley Moulton and his codefendant Gary Colson who 
were using the space to restore and sell old Ford Mustangs. 
Inside, the officers discovered evidence of several recent 
automobile and automobile-related thefts. 

On April 7, 1981, a Waldo County grand jury returned in- 
dictments charging Moulton and Colson with four counts of 
theft by receiving in violation of Me. Rev. Stat. Ann. , Tit. 
17-A, 359 (1983). Specifically, the indictments alleged that 
Moulton and Colson received, retained, or disposed of a 1978 
Ford pickup truck, a 1978 Chevrolet dump truck, a 1970 Ford 
Mustang automobile, and assorted Ford Motor Company 
automotive parts knowing these to be stolen and intending to 
deprive the owners of possession. On April 9, Moulton and 
Colson, represented by retained counsel, appeared before the 
Maine Superior Court for Waldo County and entered pleas 
of not guilty. Both were enlarged on bail pending trial. 
Numerous proceedings, unnecessary to detail here, occurred 
during the ensuing year and a half. 

On November 4, 1982, Colson complained by telephone 
to Robert Keating, Chief of the Belfast Police Department, 
that he had received anonymous threatening telephone calls 
regarding the charges pending against him and Moulton, 
and indicated that he wished to talk to the police about 
the charges. Keating told Colson to speak with his lawyer 
and to call back. 

On November 6, Colson met with Moulton at a Belfast 
restaurant to plan for their upcoming trial. According to 
Colson, Moulton suggested the possibility of killing Gary 
Elwell, a State's witness, and they discussed how to commit 
the murder. 

On November 9 and 10, Colson, accompanied by his law- 
yer, met with Police Chief Keating and State Police Detec- 
tive Rexford Kelley. At these meetings, Colson gave full 



MAINE v. MOULTON 163 

159 Opinion of the Court 

confessions of his participation -with Moulton in committing 
the crimes for which they had been indicted. In addition, 
Colson admitted that he and Moulton had not merely re- 
ceived stolen automotive parts, but also had broken into the 
local Ford dealership to steal the parts. Colson also stated 
that he and Moulton had set fire to the dump truck and had 
committed other thefts. The officers offered Colson a deal: 
no further charges would be brought against him if he would 
testify against Moulton and otherwise cooperate in the pros- 
ecution of Moulton on the pending charges. Colson agreed 
to cooperate. 2 

Colson also discussed with Keating and Kelley the anony- 
mous threats he had received and Moulton's inchoate plan to 
kill Gary Elwell. Keating requested, and Colson consented, 
to have a recording device placed on Colson's telephone. 
Colson was instructed to turn the recording device on when- 
ever he received a telephone call, but to turn it off immedi- 
ately unless it was a threat from the anonymous caller or a 
call from Moulton. 

The recording device was on Colson's telephone for over a 
month. Although he received no threats, Colson spoke to 
Moulton three times during this period, and the tapes of 
these calls were turned over to the police. The first con- 
versation, on November 22, concerned primarily personal 
matters. The only reference to the pending criminal charges 
was Colson's question whether Moulton had "heard anything 
from the lawyer/' and Moulton's response that he had not, 
but that he had "come up with a method*' that he "ha[d] to 
work out the details on," and that "[s]orne day [he'd] like to 
get together and talk to [Colson] about it." Moulton, then 



2 Seven months after the conclusion of Moulton's trial, Colson pleaded 
guilty to two counts of theft. The prosecutor recommended that Colson be 
sentenced to 2 years' imprisonment, all but 15 days to be suspended, and 
placed on probation for 2 years. Colson also agreed to make restitution up 
to $2,000 during- the probationary period. The trial court accepted this 
recornrnendation and sentenced Colson accordingly. 



164 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

living in New Hampshire, said that he was planning to visit 
Belfast around Christmas. 

The second telephone conversation, on December 2, was 
prompted by Moulton's receipt of copies of statements of 
three of the State's witnesses, including Elwell; Colson had 
not yet received copies of the statements. Most of their talk 
(on Moulton's side particularly) was about the statements of 
Elwell and ElwelTs brother, which accused Moulton and 
Colson of being guilty of the pending charges and which 
Moulton complained were an attempt to frame him and 
Colson. After reading Colson a statement by Elwell that he 
had received a threatening phone call, Moulton commented 
"[t]his is a big joke, man." 8 When Colson jokingly sug- 
gested that they flee to Acapulco, Moulton vehemently re- 
jected the suggestion, stating: "No, I'm gonna stay here and 
I'm gonna fight it man. I'm gonna fight it man. I ain't 
gonna get framed for nothing." Colson assented to this and 
suggested, "we'll have to get together sometime . . . ." 
Moulton reminded Colson that he would be visiting at Christ- 
mas, and the conversation ended without Moulton having 
said anything that incriminated him. 

The third telephone conversation, which took place on 
December 14, was similar to the second one. Most of the 
conversation concerned the pending charges, but Moulton 
said nothing inculpatory and continued to insist that he and 
Colson were being framed. Moulton asked Colson to set 
aside an entire day so that the two of them could meet and 
plan their defense. They agreed to meet on Sunday, Decem- 
ber 26. 

After learning from the telephone recordings about the 
meeting planned for December 26, the police obtained 
Colson's consent to be equipped with a body wire transmitter 
to record what was said at the meeting. Chief Keating later 
testified that he did this for Colson's safety in case Moulton 

8 Colson testified that he never told Moulton about the threatening calls 
that he had received. 



MAINE DL MOULTON 165 

159 Opinion of the Court 

realized that Colson was cooperating with the police, and 
to record any further conversation concerning threats to 
witnesses. Keating also testified that he was aware that 
Moulton and Colson were meeting to discuss the charges for 
which Moulton was already under indictment. Colson was 
instructed "not to attempt to question Perley Moulton, just 
be himself in his conversation . . . ." 

The December 26 meeting, as was to be expected from the 
recorded telephone conversations, consisted of a prolonged 
discussion of the pending charges what actually had oc- 
curred, what the State's evidence would show, and what 
Moulton and Colson should do to obtain a verdict of acquittal. 
The idea of eliminating witnesses was briefly mentioned early 
in the conversation. After a short discussion, encouraged by 
Colson, 4 Moulton concluded that he did not think the plan 
would work. The remainder of the lengthy meeting was 
spent discussing the case. Moulton and Colson decided to 
create false alibis as their defense at trial. Because they 
sought to conform these alibis as closely as possible to what 
really happened, much of their discussion involved recount- 
ing the crimes. Although Colson had described what had 
happened in detail when he confessed to the police a month 
earlier, he now frequently professed to be unable to recall the 



4 The exchange went as follows: 

"[Moulton:] You know I thought of a way to eliminate them. Remember 
we were talking about it before? 

"[Colson:] Yes, you thought of a way? 

"[Moulton:] Yeah, but ... I don't think we ought to go for it. 

"[Colson:] Is it foolproof? 

"[Moulton:] No. 

"[Colson:] Is it, is it fairly foolproof? 

"[Moulton:] I like it. I think its just for the .... 

"[Colson:] Well let me [hear it]." 

Moulton explained that he had considered using air rifles to shoot poisoned 
darts and the conversation then turned to joking about a magazine that 
instructed readers how to build bombs to kill large numbers of people. 
Exh. S-4, Tr. of Dec. 26 Meeting 18-19. 



166 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

events. Apologizing for his poor memory, he repeatedly 
asked Moulton to remind him about the details of what had 
happened, and this technique caused Moulton to make nu- 
merous incriminating statements. 5 Nor were all of Colson's 
memory lapses related to events that required discussion to 
fabricate convincing alibis. Colson also "reminisced" about 
events surrounding the various thefts, and this technique too 
elicited additional incriminating statements from Moulton. 
For example, Colson asked Moulton how many locks they had 
drilled to steal a truck, a fact obviously not relevant to devel- 
oping an alibi. Similarly, Colson questioned Moulton about 
whether it was the Mustang or the pickup truck that did not 
have a heater. Later, Colson jokingly drew forth admissions 
from Moulton concerning the dumping of a stolen truck into a 
pond after it had been scavenged for parts, and the dumping 
of a load of potatoes from another stolen truck onto the road. 
Each of these statements was later admitted into evidence 
against Moulton at trial. 

Moulton filed a pretrial motion to suppress recorded state- 
ments he made to Colson in the three telephone conversa- 
tions and at the December 26 meeting, arguing, inter alia, 
that the statements were obtained in violation of the Sixth 
and Fourteenth Amendments. After a hearing, the trial 
court denied the motion. The trial court found that the 
recordings were made "in order to gather information con- 
cerning the anonymous threats that Mr. Colson had been 



5 Colson began doing this immediately after Moulton vetoed the plan to 
eliminate witnesses. Colson indicated that he did not have copies of all the 
discovery materials, and Moulton went outside to his car to get his copies. 
While Moulton was gone, Colson sighed heavily and whispered "[o]h boy, I 
just hope I can make it through this" into the microphone. Then, when 
Moulton returned moments later, Colson immediately stated, slowly and 
deliberately: "I want you to help me with some dates. One date I cannot 
remember Caps [Moulton's nickname], just can't remember, I know it was 
in December, what night did we break into Lothrop Ford? What date?" 
7d., at 23. 



MAINE u MOULTON 167 

159 Opinion of the Court 

receiving, to protect Mr. Colson and to gather information 
concerning defendant Moulton' s plans to kill Gary Elwell." 

Meanwhile, after Colson's role as an informant had been 
revealed to Moulton, the State had the pending indictments 
dismissed and obtained seven new indictments against Moul- 
ton. These indictments realleged the pending charges, and 
charged Moulton in addition with burglary, arson, and three 
more thefts. Moulton pleaded guilty to the charges con- 
tained in two of these indictments, and the trial court dis- 
missed two more for improper venue. Moulton waived his 
right to a jury and proceeded to trial on the remaining three 
indictments, which covered the subjects of the original indict- 
ments and charged him with burglary, arson, and theft. At 
the trial, the State did not offer into evidence anything from 
the recorded telephone conversations, but did offer portions 
of the tapes of the December 26 meeting, principally those 
involving direct discussion of the thefts for which Moulton 
was originally indicted. The State did not offer the portion 
of the meeting during which Moulton and Colson discussed 
the possibility of killing witnesses and offered only one 
portion of the discussion about developing false testimony. 
At the conclusion of the trial, the court dismissed one more 
count of theft for improper venue and found Moulton not 
guilty of the arson charge. The court found Moulton guilty, 
however, of burglary and theft in connection with the Ford 
pickup truck, the Chevrolet dump truck, and the Ford auto- 
motive parts. 

Moulton appealed these convictions on the ground that 
the admission into evidence of his statements to Colson vio- 
lated his Sixth Amendment right to the assistance of counsel. 
The State filed a cross-appeal objecting to the dismissal of 
charges for improper venue. The Supreme Judicial Court of 
Maine granted both appeals and remanded for a new trial. 
481 A. 2d 155 (1984). Regarding the admission of Moulton's 
recorded statements to Colson, the court agreed that there 
was "ample evidence" to support the trial court's finding that 



168 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

the police wired Colson for legitimate purposes, but held that 
"[reference to the State's legitimate motive may be relevant 
to, but cannot wholly refute, the alleged infringement of 
Moulton's right to counsel." Id., at 160. The court held 
that the State cannot use against Moulton at trial recordings 
of conversations where the State "knew, or should have 
known" that Moulton would make incriminating statements 
regarding crimes as to which charges were already pending. 
Pointing to Moulton's close relationship with Colson, the fact 
that the purpose of their meeting was to discuss the pending 
charges, and the fact that at the time of the meeting Colson 
was "fully cooperating with the police and no longer stood in 
the same adversarial position as did Moulton," the court held: 

<r When the police recommended the use of the body 
wire to Colson they intentionally created a situation that 
they knew, or should have known, was likely to result in 
Moulton's making incriminating statements during his 
meeting with Colson. The police's valid purpose in in- 
vestigating threats against witnesses does not immunize 
the recordings of Moulton's incriminating statements 
from constitutional attack. Those statements may be 
admissible in the investigation or prosecution of charges 
for which, at the time the recordings were made, adver- 
sary proceedings had not yet commenced. But as to the 
charges for which Moulton's right to counsel had already 
attached, his incriminating statements should have been 
ruled inadmissible at trial, given the circumstances in 
which they were acquired." Id., at 161. 

We granted the State's petition for certiorari. 469 U. S. 
1206. We affirm. 

II 

A 

The right to the assistance of counsel guaranteed by the 
Sixth and Fourteenth Amendments is indispensable to the 
fair administration of our adversarial system of criminal jus- 



MAINE v. MOULTON 169 

159 Opinion of the Court 

tice. 6 Embodying "a realistic recognition of the obvious 
truth that the average defendant does not have the profes- 
sional legal skill to protect himself," Johnson v. Zerbst, 304 
U. S. 458, 462-463 (1938), the right to counsel safeguards the 
other rights deemed essential for the fair prosecution of a 
criminal proceeding. Justice Sutherland's oft-quoted ex- 
planation in Powell v. Alabama, 287 U. S. 45 (1932), bears 
repetition here: 

"The right to be heard would be, in many cases, of little 
avail if it did not comprehend the right to be heard by 
counsel. Even the intelligent and educated layman has 
small and sometimes no skill in the science of law. If 
charged with crime, he is incapable, generally, of deter- 
mining for himself whether the indictment is good or 
bad. He is unfamiliar with the rules of evidence. Left 
without the aid of counsel he may be put on trial without 
a proper charge, and convicted upon incompetent evi- 
dence, or evidence irrelevant to the issue or otherwise 
inadmissible. He lacks both the skill and knowledge 
adequately to prepare his defense, even though he have 
a perfect one. He requires the guiding hand of counsel 
at every stage of the proceedings against him/* Id., 



8 Justice Black explained in Gideon v. Waimvright, 372 U. S. 335 (1963)- 
"[Rleason and reflection require us to recognize that in our adversary sys- 
tem of criminal justice, any person haled into court . . . cannot be assured a 
fair trial unless counsel is provided for him. This seems to us to be an 
obvious truth. Governments, both state and federal, quite properly spend 
vast sums of money to establish machinery to try defendants accused of 
crime. Lawyers to prosecute are everywhere deemed essential to protect 
the public's interest in an orderly society. Similarly, there are few de- 
fendants charged with crime, few indeed, who fail to hire the best lawyers 
they can get to prepare and present their defenses. That government 
hires lawyers to prosecute and defendants who have the money hire law- 
yers to defend are the strongest indications of the widespread belief that 
lawyers in criminal courts are necessities, not luxuries. The right of one 
charged with crime to counsel may not be deemed fundamental and essen- 
tial to fair trials in some countries, but it is in ours." Id , at 344. 



170 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

at 68-69 (quoted in Gideon v. Wainwright, 372 U. S. 
335, 344-345 (1963)). 

As indicated in the last sentence of this paragraph, the 
Court has also recognized that the assistance of counsel can- 
not be limited to participation in a trial; to deprive a person of 
counsel during the period prior to trial may be more.damag- 
ing than denial of counsel during the trial itself. Recogniz- 
ing that the right to the assistance of counsel is shaped by the 
need for the assistance of counsel, we have found that the 
right attaches at earlier, "critical" stages in the criminal 
justice process "where the results might well settle the 
accused's fate and reduce the trial itself to a mere formality." 
United States v. Wade, 388 U. S. 218, 224 (1967) (quoted in 
United States v. Gouveia, 467 U. S. 180, 189 (1984)). See, 
e. g., Coleman v. Alabama, 399 U. S. 1 (1970); Hamilton v. 
Alabama, 368 U. S. 52 (1961); White v. Maryland, 373 U. S. 
59 (1963); Escobedo v. Illinois, 378 U. S. 478 (1964); Kirby v. 
Illinois, 406 U. S. 682 (1972). And, "[w]hatever else it may 
mean, the right to counsel granted by the Sixth and Four- 
teenth Amendments means at least that a person is entitled 
to the help of a lawyer at or after the time that judicial pro- 
ceedings have been initiated against him . . . ." Brewer v. 
Williams, 430 U. S. 387, 398 (1977). This is because, after 
the initiation of adversary criminal proceedings, " 'the gov- 
ernment has committed itself to prosecute, and . . . the ad- 
verse positions of government and defendant have solidified. 
It is then that a defendant finds himself faced with the pros- 
ecutorial forces of organized society, and immersed in the 
intricacies of substantive and procedural criminal law.'" 
Gouveia, supra, at 189 (quoting Kirby v. Illinois, supra, 
at 689). 

B 

Once the right to counsel has attached and been asserted, 
the State must of course honor it. 7 This means more than 



7 Cf. Brewer v. Williams, 430 U. S. 387 (1977): "[T]he lawyer is the es- 
sential medium through which the demands and commitments of the sover- 



MAINE v. MOULTON 171 

159 Opinion of the Court 

simply that the State cannot prevent the accused from ob- 
taining the assistance of counsel. The Sixth Amendment 
also imposes on the State an affirmative obligation to respect 
and preserve the accused's choice to seek this assistance. 
We have on several occasions been called upon to clarify the 
scope of the State's obligation in this regard, and have made 
clear that, at the very least, the prosecutor and police have 
an affirmative obligation not to act in a manner that circum- 
vents and thereby dilutes the protection afforded by the right 
to counsel. 

In Spano v. New York, 360 U. S. 315 (1959), the defend- 
ant, who had already been indicted, was coercively interro- 
gated by police until the early hours of the morning despite 
his repeated requests to see his lawyer. A unanimous Court 
reversed his conviction on the ground that the confession ob- 
tained by this interrogation was involuntary and therefore 
should not have been admitted into evidence at trial. Four 
Justices, in two concurring opinions, stated that they would 
also have reached this result on the ground that Spano's 
Sixth Amendment right to the assistance of counsel was vio- 
lated. These Justices reasoned that to permit police to 
'^produce the vital evidence in the form of a confession which 
is useful or necessary to obtain a conviction" in the absence of 
counsel, after the right to counsel has attached, is to deny the 
accused "effective representation by counsel at the only stage 
when legal aid and advice would help htm." Id., at 325-326 
(Douglas, J., concurring, joined by Black and BRENNAN, JJ.); 
see also, id., at 326-327 (Stewart, J., concurring, joined by 
Douglas and BRENNAN, JJ.). As Justice Douglas succinctly 
put the point, "what use is a defendant's right to effective 
counsel at every stage of a criminal case if, while he is held 
awaiting trial, he can be questioned in the absence of counsel 
until he confesses?" Id., at 326. 



eign are communicated to the citizen. If, in the long run, we are seriously 
concerned about the individual's effective representation by counsel, the 
State cannot be permitted to dishonor its promise to this lawyer." Id., at 
415 (STEVENS, J., concurring) (footnote omitted). 



172 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

The position of the concurring Justices in Spano was 
adopted by the Court in Massiah v. United States, 377 U. S. 
201 (1964). Massiah was indicted, along with a man named 
Colson, 8 for conspiracy to possess and to distribute cocaine. 
Massiah retained a lawyer, pleaded not guilty and was re- 
leased on bail. Colson, meanwhile, decided to cooperate 
with Government agents in their continuing investigation of 
the narcotics activity in which Massiah and others were 
thought to be engaged. Colson permitted a Government 
agent to install a radio transmitter under the front seat of his 
automobile. Massiah held a lengthy conversation with 
Colson in this automobile while a Government agent listened 
over the radio. Massiah made several incriminating state- 
ments, and these were brought before the jury through the 
testimony of the Government agent. We reversed Massiah's 
conviction on the ground that the incriminating statements 
were obtained in violation of Massiah's rights under the Sixth 
Amendment. The Court stressed the fact that the interview 
took place after indictment, at a time when Massiah was 
clearly entitled to the assistance of counsel. Relying on Jus- 
tice Douglas* Spano concurrence, the Court concluded that 
the need for, and consequently the right to, the assistance of 
counsel applied equally in this extrajudicial setting as at the 
trial itself. 377 U. S., at 204. 9 Consequently, the Court 
held: 



8 The parties have taken pains to assure us that Massiah's friend Colson 
and Moulton's friend Colson are unrelated. 

9 Justice Stewart noted that this view of the right to counsel "no more 
than reflects a constitutional principle established as long ago as Powell v. 
Alabama," where the Court noted that 

"'during perhaps the most critical period of the proceedings . . . that is to 
say, from the time of their arraignment until the beginning of their trial, 
when consultation, thoroughgoing investigation and preparation [are] 
vitally important, the defendants [are] as much entitled to such aid [of 
counsel] ... as at the trial itself.'" Massiah, 377 U. S., at 205 (quoting 
Powell v. Alabama, 287 U. S. 45, 57 (1932)). 



MAINE u MOULTON 173 

159 Opinion of the Court 

"[Massiah] was denied the basic protections of [the right 
to the assistance of counsel] when there was used against 
him at trial evidence of his own incriminating words, 
which federal agents had deliberately elicited from him 
after he had been indicted and in the absence of his coun- 
sel." Id., at 206. 

We applied this principle most recently in United States v. 
Henry, 447 U. S. 264 (1980). Henry was arrested and in- 
dicted for bank robbery. Counsel was appointed, and Henry 
was held in jail pending trial. Nichols, an inmate at the 
same jail and a paid informant for the Federal Bureau of 
Investigation, told a Government agent that he was housed 
in the same cellblock as several federal prisoners, including 
Henry. The agent told Nichols to pay attention to state- 
ments made by these prisoners, but expressly instructed 
Nichols not to initiate any conversations and not to question 
Henry regarding the bank robbery. Nichols and Henry 
subsequently engaged in some conversations during which 
Henry told Nichols about the robbery. Nichols testified 
about these conversations at Henry's trial, and Henry was 
convicted. 

This Court reversed, finding that the Government had 
" 'deliberately elicited' incriminating statements from Henry 
within the meaning of Massiah." Id., at 270. Several facts 
were emphasized in THE CHIEF JUSTICE'S opinion for the 
Court: that Nichols was acting as an informant for the Gov- 
ernment and therefore had an incentive to produce useful 
information; that Henry was unaware of Nichols' role as a 
Government informant; and, finally, that Henry and Nichols 
were incarcerated together at the time the conversations 
took place. With respect to this last fact, the Court rea- 
soned that "confinement may bring into play subtle influences 
that will make [an individual] particularly susceptible to the 
ploys of undercover Government agents," influences that 
were facilitated by Nichols' "apparent status as a person 
sharing a common plight." Id., at 274. Considering Nich- 



174 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

ols' conversations with Henry in light of these circumstances, 
the Court concluded that Nichols "deliberately used his posi- 
tion to secure incriminating information from Henry when 
counsel was not present" in violation of the Sixth Amend- 
ment. Id., at 270-271. The Government argued that it 
should not be held responsible for Nichols' conduct because 
its agent had instructed Nichols not to question Henry and 
had not intended that Nichols take affirmative steps to obtain 
incriminating statements. We rejected this argument, find- 
ing that, under the circumstances, the agent **must have 
known" that Nichols would take affirmative steps to secure 
incriminating information. Id., at 271. Consequently, the 
Court held, "[b]y intentionally creating a situation likely to 
induce Henry to make incriminating statements without the 
assistance of counsel, the Government violated Henry's Sixth 
Amendment right to counsel." Id., at 274. 



The State contends that the decisive fact in Massiah and 
Henry was that the police set up the confrontation between 
the accused and a police agent at which incriminating state- 
ments were elicited. Supported by the United States as 
amicus curiae, the State maintains that the Sixth Amend- 
ment is violated only when police intentionally take this or 
some equivalent step. Because Moulton rather than Colson 
initiated the recorded telephone conversations and requested 
the December 26 meeting, the State concludes that Moulton's 
Sixth Amendment rights were not violated here. 

In the first place, the identity of the party who instigated 
the meeting at which the Government obtained incriminating 
statements was not decisive or even important to our deci- 
sions in Massiah or Henry. Thus, while in Massiah it may 
have been the Government agent who was responsible for 
setting up the meeting with the defendant, 10 one discovers 

10 It is not clear whether the informant asked to meet with Massiah or 
vice versa. Both the opinion for the Second Circuit and the dissent state 



MAINE u MOULTON 175 

159 Opinion of the Court 

this only by looking to the opinions of the Court of Appeals. 
It is not mentioned in this Court's opinion since the issue of 
who set up the meeting with whom was not pertinent to our 
disposition. Moreover, four years after Massiah, the Court 
summarily reversed a conviction where the defendant re- 
quested the meeting and initiated and led the conversation in 
which incriminating statements were made to an undercover 
informant. Beatty v. United States, 389 U. S. 45 (1967) (per 
curiam). In that case, the Solicitor General made the same 
argument that he and the State make today, see Brief in 
Opposition, Beatty v. United States, O. T. 1967, No. 338, 
pp. 5-8; we rejected this argument in an opinion that simply 
cited Massiah.^ Finally, in Henry, we deemed it "irrele- 
vant that in Massiah the agent had to arrange the meeting 
between Massiah and his codefendant while here the agents 
were fortunate enough to have an undercover informant 
already in close proximity to the accused." 447 U. S., at 
272, n. 10. 

only that, on the instructions of a Government agent, Colson invited 
Massiah into his car to discuss their case; neither opinion establishes who 
requested the meeting in the first place. See United States v. Massiah, 
307 F. 2d 62, 66 (1962); id., at 72 (Hays, J., dissenting). It is quite plausi- 
ble that Massiah asked to see Colson who then proposed meeting in his car. 
In fact, there is nothing in the record in Massiah to support even the asser- 
tion of the Court of Appeals that Colson rather than Massiah suggested 
meeting in Colson's car, although the inference is logical enough. See 
App. to Brief for United States in Massiah v. United States, O. T. 1963, 
No. 199, pp. 125a-175a (testimony of Agent Murphy). 

11 In his amicus brief for the United States in this case, the Solicitor 
General suggests that Beatty did not survive Brewer v. Williams, 430 
U. S. 387 (1977), which, he contends, modified Massiah to require affirma- 
tive interrogation by the Government. Brief for United States as Amides 
Curiae 17, n. 12. That argument, however, was expressly rejected when 
the Solicitor General made it in Henry. See 447 U. S., at 271 (''While 
affirmative interrogation, absent waiver, would certainly satisfy Massiah, 
we are not persuaded, as the Government contends, that Brewer v. Wil- 
liams . . . modified Massiah's 'deliberately elicited' test"). Cf. also, Brief 
for United States in United States v. Henry, O. T. 1979, No. 121, p. 26, 
n. 12. 



176 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

Beyond this, the State's attempt to limit our holdings 
in Massiah and Henry fundamentally misunderstands the 
nature of the right we recognized in those cases. The Sixth 
Amendment guarantees the accused, at least after the initia- 
tion of formal charges, the right to rely on counsel as a "me- 
dium" between him and the State. As noted above, this 
guarantee includes the State's affirmative obligation not to 
act in a manner that circumvents the protections accorded 
the accused by invoking this right. The determination 
whether particular action by state agents violates the 
accused's right to the assistance of counsel must be made in 
light of this obligation. Thus, the Sixth Amendment is not 
violated whenever by luck or happenstance the State ob- 
tains incriminating statements from the accused after the 
right to counsel has attached. See Henry, 447 U. S., at 276 
(POWELL, J., concurring). However, knowing exploitation 
by the State of an opportunity to confront the accused with- 
out counsel being present is as much a breach of the State's 
obligation not to circumvent the right to the assistance of 
counsel as is the intentional creation of such an opportunity. 
Accordingly, the Sixth Amendment is violated when the 
State obtains incriminating statements by knowingly circum- 
venting the accused's right to have counsel present in a con- 
frontation between the accused and a state agent. 12 

Ill 

Applying this principle to the case at hand, it is clear that 
the State violated Moulton's Sixth Amendment right when it 
arranged to record conversations between Moulton and its 
undercover informant, Colson. It was the police who sug- 
gested to Colson that he record his telephone conversations 
with Moulton. Having learned from these recordings that 

12 Direct proof of the State's knowledge will seldom be available to the 
accused. However, as Henry makes clear, proof that the State "must 
have known" that its agent was likely to obtain incriminating statements 
from the accused in the absence of counsel suffices to establish a Sixth 
Amendment violation. See 447 U. S., at 271. 



MAINE u MOULTON 177 

159 Opinion of the Court 

Moulton and Colson were going to meet, the police asked 
Colson to let them put a body wire transmitter on him to 
record what was said. Police Chief Keating admitted that, 
when they made this request, the police knew as they must 
have known from the recorded telephone conversations 
that Moulton and Colson were meeting for the express pur- 
pose of discussing the pending charges and planning a de- 
fense for the trial. 18 The police thus knew that Moulton 
would make statements that he had a constitutional right not 
to make to their agent prior to consulting with counsel. As 
in Henry, the fact that the police were "fortunate enough to 
have an undercover informant already in close proximity to 
the accused" does not excuse their conduct under these 
circumstances. 447 U. S., at 272, n. 10. By concealing 
the fact that Colson was an agent of the State, the police 
denied Moulton the opportunity to consult with counsel and 
thus denied him the assistance of counsel guaranteed by the 
Sixth Amendment. 14 

18 Because Moulton thought of Colson only as his codefendant, Colson's 
engaging Moulton in active conversation about their upcoming trial was 
certain to elicit statements that Moulton would not intentionally reveal 
and had a constitutional right not to reveal to persons known to be police 
agents. Under these circumstances, Colson's merely participating in this 
conversation was "the functional equivalent of interrogation." Henry, 447 
U. S., at 277 (POWELL, J., concurring). In addition, the tapes disclose 
and the Supreme Judicial Court of Maine found that Colson "frequently 
pressed Moulton for details of various thefts and in so doing elicited much 
incriminating information that the State later used at trial." 481 A. 2d, at 
161. Thus, as in Henry, supra, at 271, n. 9, we need not reach the situa- 
tion where the "listening post" cannot or does not participate in active con- 
versation and prompt particular replies. 

"The State argues that it took steps to prevent Colson from inducing 
Moulton to make incriminating admissions by instructing Colson to "be 
himself," "act normal," and "not interrogate" Moulton. Tr. of Hearing on 
Motion to Suppress 42, 51, 56. In Henry, we rejected this same argument 
although the likelihood that the accused would talk about the pending 
charges to a cellmate was less than here, where the accused invited his Co- 
defendant to discuss the upcoming trial, and although the instructions to 
the agent were far more explicit. See 447 U. S., at 268, 271. More im- 



178 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

IV 

The Solicitor General argues that the incriminating state- 
ments obtained by the Maine police nevertheless should 
not be suppressed because the police had other, legitimate 
reasons for listening to Moulton's conversations with Colson, 
namely, to investigate Moulton's alleged plan to kill Gary 
Elwell and to insure Colson's safety. In Massiah, the Gov- 
ernment also contended that incriminating statements ob- 
tained as a result of its deliberate efforts should not be ex- 
cluded because law enforcement agents had "the right, if not 
indeed the duty, to continue their investigation of [Massiah] 
and his alleged criminal associates . . . ." 377 U. S., at 206. 
There, as here, the Government argued that this circum- 
stance justified its surveillance and cured any improper acts 
or purposes. We rejected this argument, and held: 



portantly, under the circumstances of this case, the instructions given to 
Colson -were necessarily inadequate. The Sixth Amendment protects the 
right of the accused not to be confronted by an agent of the State regarding 
matters as to which the right to counsel has attached without counsel being 
present. This right was violated as soon as the State's agent engaged 
Moulton in conversation about the charges pending against him. Because 
these charges were the only subject to be discussed at Colson's December 
26 meeting with Moulton, a Sixth Amendment violation was inevitable 
once Colson agreed to this meeting with Moulton. 

In any event, we reject the State's suggestion that these instructions 
were designed to protect Moulton's constitutional rights. The instructions 
were obviously motivated by the police's concern that Colson, who had 
never before served as an undercover agent, might behave unnaturally or 
ask too many questions, thereby tipping Moulton off to the fact that Colson 
was cooperating with the police. Thus, rather than explain to Colson that 
actively questioning Moulton might taint any evidence obtained, the police 
simply told Colson to "be himself," and to "act normal." Tr. of Hearing on 
Motion to Suppress 42, 51, 56. In addition, the instructions were not lim- 
ited to questions concerning the pending charges, the only matters as to 
which active questioning might create problems. On the contrary, accord- 
ing to Chief Keating, Colson was instructed that he could engage Moulton 
in a conversation but should not try to draw him out on "elimination of wit- 
nesses or anything." Id., at 51. 



MAINE v. MOULTON 179 

159 Opinion of the Court 

"We do not question that in this case, as in many cases, it 
was entirely proper to continue an investigation of the 
suspected criminal activities of the defendant and his 
alleged confederates, even though the defendant had 
already been indicted. All that we hold is that the 
defendant's own incriminating statements, obtained by 
federal agents under the circumstances here disclosed, 
could not constitutionally be used by the prosecution as 
evidence against him at his trial." Id., at 207 (emphasis 
omitted). 

We reaffirm this holding, which states a sensible solution 
to a difficult problem. The police have an interest in the 
thorough investigation of crimes for which formal charges 
have already been filed. They also have an interest in inves- 
tigating new or additional crimes. Investigations of either 
type of crime may require surveillance of individuals already 
under indictment. Moreover, law enforcement officials in- 
vestigating an individual suspected of committing one crime 
and formally charged with having committed another crime 
obviously seek to discover evidence useful at a trial of either 
crime. 15 In seeking evidence pertaining to pending charges, 

16 In his brief, the Solicitor General assumes that the only claim made by 
the Government and answered by the Court in Massiah was that the Gov- 
ernment was engaged in a continuing investigation of crimes as to which 
charges were already pending. He concedes that this was an inadequate 
justification which "had the flavor of a post hoc rationalization of conduct 
that, at its inception, in fact had as a primary purpose the obtaining of evi- 
dence for use at trial on the pending charges." Brief for United States as 
AmicuA Curiae 23-24. So saying, he asks us to distinguish from that jus- 
tification the justification that law enforcement officials are investigating 
"separate" crimes. In Massiah, however, the Government's assertion 
was that it needed to continue its investigation hi order to discover the 
identities of Massiah's intended buyer and of others who were importing 
narcotics as well as to find additional evidence of Massiah's crimes. Brief 
for United States in Massiah v. United States, O. T. 1963, No. 199, 
pp. 26-27. The Court in Massiah was thus faced with the very same argu- 
ment made by the Solicitor General in this case. Even were the Solicitor 
General's characterization of the issue posed in Massiah correct, however, 



180 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

however, the Government's investigative powers are limited 
by the Sixth Amendment rights of the accused. To allow the 
admission of evidence obtained from the accused in violation 
of his Sixth Amendment rights whenever the police assert an 
alternative, legitimate reason for their surveillance invites 
abuse by law enforcement personnel in the form of fabricated 
investigations and risks the evisceration of the Sixth Amend- 
ment right recognized in Massiah. On the other hand, to 
exclude evidence pertaining to charges as to which the Sixth 
Amendment right to counsel had not attached at the time 
the evidence was obtained, simply because other charges 
were pending at that time, would unnecessarily frustrate the 
public's interest in the investigation of criminal activities. 
Consequently, incriminating statements pertaining to pend- 
ing charges are inadmissible at the trial of those charges, 
notwithstanding the fact that the police were also investi- 
gating other crimes, if, in obtaining this evidence, the State 
violated the Sixth Amendment by knowingly circumventing 
the accused's right to the assistance of counsel. 16 

Because we hold that the Maine police knowingly circum- 
vented Moulton's right to have counsel present at a con- 
frontation between Moulton and a police agent, the fact that 
the police had additional reasons for recording Moulton's 
meeting with Colson is irrelevant. The decision of the 
Supreme Judicial Court of Maine is affirmed. 

It is so ordered. 



we would not draw the distinction he asks us to make. The likelihood of 
post hoc rationalizing is the same whether police claim to be investigating 
other examples of the same crime or some allegedly "separate" crime. We 
take what we feel is a more realistic view of police investigations, and in- 
stead accept that dual purposes may exist whenever police have more than 
one reason to investigate someone. 

16 Incriminating statements pertaining to other crimes, as to which the 
Sixth Amendment right has not yet attached, are, of course, admissible at 
a trial of those offenses. 



MAINE <v. MOULTON 181 

159 BURGER, C. J., dissenting 

CHIEF JUSTICE BURGER, with whom JUSTICE WHITE and 
JUSTICE REHNQUIST join, and with whom JUSTICE O'CoN- 
NOR joins as to Parts I and III, dissenting. 

Today the Court holds that the Sixth Amendment prohibits 
the use at trial of postindictment statements made to a 
government informant, even where those statements were 
recorded as part of a good-faith investigation of entirely sepa- 
rate crimes. Nothing whatever in the Constitution or our 
prior opinions supports this bizarre result, which creates a 
new "right" only for those possibly habitual offenders who 
persist in criminal activity even while under indictment for 
other crimes. I dissent and would reverse. 



Before reaching the legal issues, it is important that the 
factual basis on which the State acted here be clearly under- 
stood. Since the Court's opinion glosses over some of the 
more relevant facts, I review them here briefly. 

After respondent and a codefendant, Gary Colson, were 
indicted on several felony counts of theft by receiving sto- 
len goods, Colson telephoned Belfast Police Chief Robert 
Keating to arrange a meeting. At that meeting, on Novem- 
ber 4, 1982, Colson told Chief Keating that he had been 
receiving "threatening phone calls" and that "it had gone 
too far." In this conversation, Colson indicated his desire to 
tell Chief Keating about the circumstances giving rise to the 
indictment; but Chief Keating appropriately cautioned him 
to consult with an attorney before saying more. 

Two days later, Colson and respondent met. Respondent 
spoke of "[g]etting rid of a couple of witnesses," including 
Gary Elwell, a key prosecution witness in the upcoming trial 
of Colson and respondent. Respondent had formulated a 
general plan for the murder; Colson's role was to pick up a 
car to be used in that endeavor. 

On November 9 and 10, Colson met with Chief Keating and 
Detective Rex Kelley of the Maine State Police at the office 



182 OCTOBER TERM, 1985 

BURGER, C. J., dissenting 474 U. S. 

of Colson's attorney. At these meetings, Colson revealed to 
the police respondent's plan to kill Elwell. Keating was 
aware that several witnesses connected with the case had 
received threats. One witness, Duke Ducaster, had been 
threatened personally by respondent. Another witness, 
Herman Peasley, "had been told . . . that a cup of acid could 
be thrown in his face" if he talked to the police. Colson then 
consented to having the police place a recording device on his 
home telephone. Keating testified that he placed the device 
on the telephone because respondent was to call Colson back 
when plans to eliminate Elwell had been finalized and be- 
cause Colson himself had been receiving anonymous threat- 
ening telephone calls. 

Three telephone calls initiated by respondent were sub- 
sequently recorded. In the first, on November 22, 1982, 
respondent, in an apparent reference to the plan to do away 
with Elwell, told Colson that he had "come up with a method" 
and that he wanted to get together with Colson to talk about 
it after he had "work[ed] out the details on it." In the sec- 
ond recorded conversation, respondent reviewed with Colson 
the extent of the evidence against them and made several 
incriminating statements. In the last of the recorded 
conversations, respondent again incriminated himself 1 and 



1 Contrary to the Court's assertion that "the conversation ended without 
Moulton having said anything that incriminated him," ante, at 164, Moul- 
ton and Colson in fact rehearsed a fabricated story that they planned to use 
at trial: 

"[Moulton:] The parts I bought. I never denied that. I did buy those. 

"[Colson:] The [M]ustang . . . same here. 

"[Moulton:] And the [M]ustang, we bought that? 

"[Colson:] Yeah. 

"[Moulton:] Ok. It's just a coincidence that ah, they happened to be 
. . . [h]ot or whatever. . . . You've got a bill of sale for the Mustang. I got 
a bill of sale for parts. So, you know, what the hell? What can they say?" 
Exh. S-3, Tr. of Dec. 14 Conversation 4-5. 



MAINE v. MOULTON 183 

159 BURGER, C. J., dissenting 

referred to statements by witnesses that they had been 
threatened. Finally, respondent told Colson that he wanted 
to meet to "review the whole plan." 

Chief Keating and Detective Kelley then arranged for 
Colson to wear a body recorder/transmitter during this meet- 
ing. Both officers testified that the recorder was intended 
to protect Colson's safety, since respondent might have 
learned that Colson was cooperating with the police, as well 
as to record any information concerning threats to other wit- 
nesses. Colson himself testified that his understanding of 
the reasons for using the recorder were "number 1 ... my 
safety" and "number 2 ... for any other plans to do away 
with any of the witnesses/' When asked if there was a 
"number 3," Colson testified "no," The police instructed 
Colson "to act like himself, converse normally, and avoid 
trying to draw information out of Moulton." 

During the meeting with Colson, respondent without any 
prompting brought up the possibility of killing Gary Elwell, 
by means of an air gun with hollow-tipped darts or explo- 
sives. 2 Respondent also suggested developing false testi- 



2 After a break in the conversation, respondent took a deep sigh and 
said: 

"[Moulton:] You know I thought of a way to eliminate them. Remem- 
ber we were talking about it before? 

"[Colson:] Yes, you thought of a way? 

"[Moulton:] Yeah, but, ah, I don't think we ought to go for it. ... 

"[Colson:] Well, let me [hear it]. 

"[Moulton:] Well you know those air guns. . . . They make little darts 
for those little feather back darts that you can put in there you've seen em. 
Those little darts, those little things about that long. I [was] thinking just 
hollow the tip out like a needle and just put . . . little . . . holes on the side, 
and you fill it with a lethal injection and the shooting impact would shoot all 
the stuff out of it into . . . the individuals body [and] poison [th]em. There 
would be no noise. 

"[Colson:] Jesus. . . . 

"[Moulton:] That's the only thing that runs through my brain . . . you 
have a puncture wound, probably take about 20 or 30 minutes to kick off, 



184 OCTOBER TERM, 1985 

BURGER, C. J,, dissenting 474 U. S. 

mony for presentation at trial. These portions of the tran- 
script were not admitted into evidence at trial. In addition, 
there was direct discussion of the thefts for which respondent 
had been indicted; these portions of the transcript were 
admitted* The trial court refused to suppress these por- 
tions since the State had recorded the conversations "for 
legitimate purposes not related to the gathering of evidence 
concerning the crime for which [respondent] had been in- 
dicted L e., in order to gather information concerning the 
anonymous threats that Mr. Colson had been receiving, to 
protect Mr. Colson and to gather information concerning [re- 
spondent's] plans to kill Gary Elwell." The Maine Supreme 
Court in a careful opinion found "ample evidence" to support 
this factual finding. 

II 

The Court today concludes that "[t]o allow the admission of 
evidence obtained from an accused in violation of his Sixth 
Amendment rights whenever the police assert an alternative, 
legitimate reason for their surveillance . . . risks the 
evisceration of the Sixth Amendment right recognized in 
Massiah." Ante, at 180. With all deference I am bound to 
state that this conclusion turns the Sixth Amendment on its 
head by first positing a constitutional violation and then ask- 
ing whether "alternative, legitimate reasons" for the police 
surveillance are sufficient to justify that constitutional viola- 

yeah, and the other problem is the poison, where . . . are you going to get 
some poison? Small bottles. 

"[Colson:] What was that stuff you told me about once? 

"[Moulton:] Calcium chlorine . . . , yeah, something like that, just a 
small drop will make you look like you have a heart attack and . . . you'd 
never, never, find it unless you were looking . . . exactly for that drug. . . . 
Stops your heart." Exh. S-4, Tr. of Dec. 26 Meeting 18-20. 

Moulton then discussed an alternative scheme for doing away with wit- 
nesses, based on making explosives pursuant to directions contained in a 
magazine that one of his tf best friends" was sending. Moulton described 
him as having belonged to "a motorcycle gang" and also suggested omi- 
nously that he had "[pjrobably snuffed one or two people." Id., at 21. 



MAINE v. MOULTON 185 

159 BURGER, C. J., dissenting 

tion. As I see it, if "alternative, legitimate reasons" moti- 
vated the surveillance, then no Sixth Amendment violation 
has occurred. Indeed, if the police had failed to take the 
steps they took here knowing that Colson was endangering 
his life by talking to them, in my view they would be subject 
to censure. 

Analysis of this issue must begin with Hqffd v. United 
States, 385 U. S. 293 (1966), not cited in the Court's opinion. 
In Hoffa, the Court held that postindictment statements ob- 
tained by a Government informant "relating] to the commis- 
sion of a quite separate offense," id., at 308, were properly 
admitted at a subsequent trial for the separate crime. Other 
courts have also held that Massiah, viewed in light of the 
later-decided Hoffa case, does not prohibit the introduction of 
incriminating statements obtained in good faith by the Gov- 
ernment even after an indictment at a trial involving an of- 
fense different from that covered by the indictment. See, 
e. g., Mealer v. Jones, 741 F. 2d 1451, 1455 (CA2 1984), cert, 
denied, 471 U. S. 1006 (1985); United States v. Lisenby, 716 
F. 2d 1355, 1357-1359 (CA11 1983) (en bane). 

Applying Hoffa to the facts of this case, it is clear that the 
statements obtained by Colson could have been introduced 
against respondent at a subsequent trial for crimes apart 
from those for which respondent had already been indicted, 
such as conspiracy to commit murder or to obstruct justice. 
The majority concedes as much: "Incriminating statements 
pertaining to other crimes, as to which the Sixth Ajnendment 
right has not yet attached, are, of course, admissible at a trial 
of those offenses." Ante, at 180, n. 16. It follows from this 
that the State engaged in no impermissible conduct in its in- 
vestigation of respondent based on Colson's revelations. By 
recording conversations between respondent and Colson, 
Chief Keating and Detective Kelley succeeded in obtaining 
evidence that the Court's opinion concedes could have been 
used to convict respondent of further crimes. In fact this 
record shows clearly that, based on the recordings, the State 



186 OCTOBER TERM, 1985 

BURGER, C. J., dissenting 474 U. S. 

was able to obtain additional indictments against respondent 
for burglary, arson, and three more thefts. The Court's 
opinion notes that respondent pleaded guilty to several of 
the additional indictments secured as a result of pursuing 
Colson's leads. Ante, at 167. 

Courts ought to applaud the kind of careful and diligent ef- 
forts of the police shown by this record. Indeed, the Court's 
opinion does not suggest that the police should have or 
could have conducted their investigation in any other way. 
Yet, inexplicably, the Court holds that the highly probative 
and reliable evidence produced by this wholly legitimate 
investigation must be excluded from respondent's trial for 
theft. The anomaly of this position, then, is that the evi- 
dence at issue in this case should have been excluded from 
respondent's theft trial even though the same evidence could 
have been introduced against respondent himself 'at a trial for 
separate crimes. Far from being "a sensible solution to a 
difficult problem," ante, at 179, as the Court modestly sug- 
gests, it is a judicial aberration conferring a windfall benefit 
to those who are the subject of criminal investigations for one 
set of crimes while already under indictment for another. I 
can think of no reason to turn the Sixth Amendment into a 
"magic cloak," United States v. DeWolf, 696 F. 2d 1, 3 (CA1 
1982), to protect criminals who engage in multiple offenses 
that are the subject of separate police investigations. 

We have held that no Sixth Amendment violation occurs 
unless the State "deliberately elicit[s]" comments from the 
defendant. See Massiah v. United States, 377 U. S. 201, 
206 (1964); United States v. Henry, 447 U. S. 264, 270 (1980). 
As the foregoing amply demonstrates, however, a finding of 
"deliberate elicitation" is not the end of the inquiry. In 
using the phrase "deliberate elicitation," we surely must have 
intended to denote elicitation for the purpose of using such 
statements against the defendant in connection with charges 
for which the Sixth Amendment right to counsel had at- 
tached. Here the State indeed set out to elicit information 



MAINE u MOULTON 187 

159 BURGER, C. J., dissenting 

from a defendant, but it was an investigation with respect to 
crimes other than those for which the defendant then stood 
indicted. As two courts found, the State recorded the con- 
versations " 'for legitimate purposes not related to the gath- 
ering of evidence concerning the crime for which [respond- 
ent] had been indicted.'" 481 A. 2d 155, 160 (Me. 1984) 
(quoting trial court). 

No prior holding of this Court recognizes a Sixth Amend- 
ment violation in such circumstances. As one court has put 
it, the Sixth Amendment "speaks only to the situation where 
in the absence of retained counsel, statements are deliber- 
ately elicited from a defendant in connection with a crime for 
which he has already been indicted." United States v. 
Hinton, 543 F. 2d 1002, 1015 (CA2), cert, denied sub nom. 
Carter v. United States, 429 U. S. 980 (1976). 3 Thus, in 
United States v. Henry, supra, at 275, n. 14, we quoted Dis- 
ciplinary Rule 7-104(A)(l) of the American Bar Association's 
Code of Professional Responsibility, which provides that 
"'a lawyer shall not . . . [c]ommunicate or cause another 
to communicate on the subject of the representation with a 

8 The Court's opinion seems to read Massiah as if it definitively ad- 
dresses situations where the police are investigating a separate crime. 
This reading is belied by the Massiah Court's statement of its own holding: 
"We do not question that in this case, as in many cases, it was entirely 
proper to continue an investigation of the suspected criminal activities of 
the defendant and his alleged confederates, even though the defendant had 
already been indicted. All that we hold is that the defendant's own incrim- 
inating statements, obtained by federal agents under the circumstances 
here disclosed, could not constitutionally be used by the prosecution as evi- 
dence against him at his trial." Massiah v. United States, 377 U. S. 201, 
207 (1964) (first emphasis added). 

The reference to the "circumstances here disclosed" must be to the fact 
that the Government, far from pursuing a good-faith investigation of dif- 
ferent crimes, had "instructed the informant to engage [Massiah] in con- 
versation relating to the crimes [for which he had already been indicted]." 
United States v. Henry, 447 U. S. 264, 276 (1980) (POWELL, J., concur- 
ring); Brief for Petitioner in Massiah v. United States, O. T. 1963, No. 199, 
p. 4. 



188 OCTOBER TERM, 1985 

BURGER, C. J., dissenting 474 U. S. 

party he knows to be represented by a lawyer in that mat- 
ter * " (emphasis added). Our reference in Henry to this rule 
illustrates that we have framed the Sixth Amendment issue 
in terms of whether the State deliberately circumvented 
counsel with regard to the "subject of representation." But 
where, as here, the incriminating statements are gathered 
for "an alternative, legitimate reason," ante, at 180, wholly 
apart from the pending charges, no such deliberate circum- 
vention exists. 

The Court's opinion seems to rest on the notion that the 
evidence here is excludable because "the State 'must have 
known' that its agent was likely to obtain incriminating 
statements from the accused," ante, at 176, n. 12, with re- 
spect to the crimes for which he was already indicted. But 
the inquiry mandated by our holdings is whether the State 
recorded the statements not merely in spite of, but because 
of that consequence. Cf. Wayte v. United States, 470 U. S. 
598 (1985). If the State is not seeking to elicit information 
with respect to the crime for which the defendant is already 
indicted, it cannot rationally be said that the State has 
"planned an impermissible interference with the right to the 
assistance of counsel." Henry, supra, at 275. 

This case is a particularly inappropriate one for invoking 
the right to counsel. The right to counsel recognized in 
Massiah was designed to preserve the integrity of the trial. 
See 377 U. S., at 204. Here respondent was under investi- 
gation because of his plans to obstruct justice by killing an 
essential witness. There is no right to consult an attorney 
for advice on committing crimes. See United States v. Mer- 
ritts, 527 F. 2d 713, 716 (CA7 1975). Indeed, any attorney 
who undertook to offer such advice would undoubtedly be 
subject to sanction. Disciplinary Rule 7-102(A)(7) of the 
Code of Professional Responsibility, for example, states "a 
lawyer shall not . . . [c]ounsel or assist his client in conduct 
that the lawyer knows to be illegal or fraudulent." Thus 
there is no warrant for vindicating respondent's right to con- 



MAINE u MOULTON 189 

159 BURGER, C. J., dissenting 

suit counsel. An observation of this Court in connection 
with the attorney-client evidentiary privilege bears mention 
here: "The privilege takes flight if the relation is abused. A 
client who consults an attorney for advice that will serve him 
in the commission of a fraud will have no help from the law. 
He must let the truth be told." Clark v. United States, 289 
U. S. 1, 15 (1933). I would let the truth be told in this case 
rather than exclude evidence that was the product of this 
police investigation into activities designed to thwart the 
judicial process. 

Even though the Massiah rule is inapplicable to situations 
where the government is gathering information related to a 
separate crime, police misconduct need not be countenanced. 
Accordingly, evidence obtained through a separate crimes in- 
vestigation should be admitted only "so long as investigating 
officers show no bad faith and do not institute the investiga- 
tion of the separate offense as a pretext for avoiding the dic- 
tates of Massiah." United States v. Darwin, 757 F. 2d 1193, 
1199 (CA11 1985). Here the careful actions of Chief Keating 
and Detective Kelley steered well clear of these prohibitions. 

Until today, the clearly prevailing view in the federal and 
state courts was that Massiah and its successors did not pro- 
tect a defendant from the introduction of postindictment 
statements deliberately elicited when the police undertook an 
investigation of separate crimes. 4 As two leading commen- 
tators have observed: 



4 See United States v. DeWolf, 696 F. 2d 1, 3 (CA1 1982); Grieco v. 
Meachum, 533 F. 2d 713, 717-718 (CA1 1976), cert, denied sub nom. 
Cassesso v. Meachum, 429 U. S. 858 (1976); United States v. Hinton, 543 
F. 2d 1002, 1015 (CA2), cert, denied sub nom. Carter v. United States, 429 
U. S. 980 (1976); United States v. Merritts, 527 F. 2d 713, 716 (CA7 1975); 
United States v. Taxe, 540 F. 2d 961, 968-969 (CA9 1976), cert, denied, 429 
U. S. 1040 (1977); United States v. Darwin, 757 F. 2d 1193, 1200 (CA11 
1985); Crawford v. State, 377 So. 2d 145, 156 (Ala. Grim. App.), aff 'd, 377 
So. 2d 159 (Ala. 1979), vacated and remanded, 448 U. S. 904 (1980); 
Deskins v. Commonwealth, 512 S. W. 2d 520, 526 (Ky. 1974), cert, denied, 
419 U. S. 1122 (1975); Hall v. State, 47 Md. App. 590, 596, 425 A. 2d 227, 



190 OCTOBER TERM, 1985 

BURGER, C. J., dissenting 474 U. S. 

"Even before [Brewer v.] Williams, [430 U. S. 387 
(1977),] it was generally accepted that the right to coun- 
sel did not bar contact with the defendant concerning 
other offenses, particularly if the offenses were clearly 
unrelated and it did not appear the charge was simply a 
pretext to gain custody in order to facilitate the investi- 
gation. The more recent cases recognize that \_Massiah 
and its progeny do] not confer upon charged defendants 
immunity from investigation concerning other crimes. 
This is especially true when the offense under inves- 
tigation is a new or ongoing one, such as illegal efforts 
to thwart the forthcoming prosecution." 1 W. LaFave 
& J. Israel, Criminal Procedure 6.4, p. 470 (1984) 
(emphasis added) (footnotes omitted). 

Rather than expand Massiah beyond boundaries currently 
recognized, I would take note of the observation that 
"Massiah certainly is the decision in which Sixth Amendment 
protections have been extended to their outermost point." 
Henry, 447 U. S., at 282 (BLACKMUN, J., dissenting). I 
would not expand them more and well beyond the limits of 
precedent and logic. 

Ill 

Even if I were prepared to join the Court in this enlarge- 
ment of the protections of the Sixth Amendment, I would 
have serious doubts about also extending the reach of the 
exclusionary rule to cover this case. "Cases involving Sixth 
Amendment deprivations are subject to the general rule that 

231 (1981), aff 'd, 292 Md. 683, 441 A. 2d 708 (1982); People v. Mealer, 57 
N. Y. 2d 214, 218, 441 N. E. 2d 1080, 1082 (1982); People v. Costello, 101 
App. Div. 2d 244, 247, 476 N. Y. S. 2d 210, 212 (1984); Hummel v. Com- 
monwealth, 219 Va. 252, 257, 247 S. E. 2d 385, 388 (1978), cert, denied, 
440 U. S. 935 (1979). Cf. United States v. Moschiano, 695 F. 2d 236, 243 
(CA7 1982), cert, denied, 464 U. S. 831 (1983); United States v. Soffit, 89 
F. R. D. 523 (Del. 1981). But see Mealer v. Jones, 741 F. 2d 1451, 1455 
(CA2 1984), cert, denied, 471 U. S. 1006 (1985); State v. Ortiz, 131 Ariz. 
195, 202, 639 P. 2d 1020, 1028 (1981), cert, denied, 456 U. S. 984 (1982). 



MAINE v. MOULTON 191 

159 BURGER, C. J., dissenting 

remedies should be tailored to the injury suffered from the 
constitutional violation and should not unnecessarily infringe 
on competing interests." United States v. Morrison, 449 
U. S. 361, 364 (1981). Application of the exclusionary rule 
here makes little sense, as demonstrated by "weighing the 
costs and benefits of preventing the use in the prosecution's 
case in chief of inherently trustworthy tangible evidence." 
United States v. Leon, 468 U. S. 897, 907 (1984). 

With respect to the costs, applying the rule to cases where 
the State deliberately elicits statements from a defendant in 
the course of investigating a separate crime excludes evi- 
dence that is "typically reliable and often the most probative 
information bearing on the guilt or innocence of the defend- 
ant." Stone v. Powell, 428 U. S. 465, 490 (1976). More- 
over, because of the trustworthy nature of the evidence, its 
admission will not threaten "the fairness of a trial or ... the 
integrity of the factfinding process." Brewer v. Williams, 
430 U. S. 387, 414 (1977) (POWELL, J., concurring). Hence, 
application of the rule to cases like this one "deflects the 
truthfinding process," "often frees the guilty," and may well 
"generat[e] disrespect for the law and [the] administration of 
justice." Stone v. Powell, supra, at 490-491. 

Against these costs, applying the rule here appears to cre- 
ate precious little in the way of offsetting "benefits." Like 
searches in violation of the Fourth Amendment, the "wrong" 
that the Court condemns was "fully accomplished" by the 
elicitation of comments from the defendant and "the exclu- 
sionary rule is neither intended nor able to cure the invasion 
of the defendant's rights which he has already suffered." 
Leon, supra, at 906 (internal quotation omitted). 

The application of the exclusionary rule here must there- 
fore be premised on deterrence of certain types of conduct by 
the police. We have explained, however, that "[t]he deter- 
rent purpose of the exclusionary rule necessarily assumes 
that the police have engaged in willful, or at the very least 
negligent, conduct which has deprived the defendant of some 



192 OCTOBER TERM, 1985 

BURGER, C. J., dissenting 474 U. S. 

right." United States v. Peltier, 422 U. S. 531, 539 (1975). 
Here the trial court found that the State obtained state- 
ments from respondent "for legitimate purposes not related 
to the gathering of evidence concerning the crime for which 
[respondent] had been indicted." Since the State was not 
trying to build its theft case against respondent in obtaining 
the evidence, excluding the evidence from the theft trial will 
not affect police behavior at all. The exclusion of evidence 
"cannot be expected, and should not be applied, to deter 
objectively reasonable law enforcement activity." Leon, 
supra, at 919. Indeed, as noted above, it is impossible to 
identify any police "misconduct" to deter in this case. In 
fact, if anything, actions by the police of the type at issue 
here should be encouraged. The diligent investigation of 
the police in this case may have saved the lives of several 
potential witnesses and certainly led to the prosecution and 
conviction of respondent for additional serious crimes. 

It seems, then, that the Sixth Amendment claims at issue 
here "closely parallel claims under the Fourth Amendment," 
Brewer, supra, at 414 (POWELL, J., concurring), where we 
have found the exclusionary rule to be inapplicable by weigh- 
ing the costs and benefits of its applications. See, e. g., 
United States v. Leon, supra (exclusionary rule inapplicable 
where officers rely in good faith on defective search warrant 
issued by neutral magistrate); Stone v. Powell, supra (where 
full opportunity to litigate Fourth Amendment issues has 
been afforded, such issues may not be raised in a state habeas 
petition). If anything, the argument for admission of the 
evidence here is even stronger because "[t]his is not a case 
where . . . the constable . . . blundered.'" United States v. 
Henry, supra, at 274-275 (quoting People v. DeFore, 242 
N. Y. 13, 21, 150 N. E. 585, 587 (1926) (Cardozo, J.)). 

Because the Court today significantly and unjustifiably 
departs from our prior holdings, I respectfully dissent. 



CLEAVINGER u SAXNER 193 

Syllabus 

CLEAVINGER ET AL. v. SAXNER ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 
THE SEVENTH CIRCUIT 

No. 84-732. Argued October 16, 1985 Decided December 10, 1985 

Respondent federal prison inmates were found guilty by the prison's Disci- 
pline Committee, composed of petitioner prison officials, of encouraging 
other inmates to engage in a work stoppage and of other charges, and 
were ordered to be placed in administrative detention and to forfeit a 
specified number of days of "good time." On appeals to the Warden and 
the Regional Director of the Bureau of Prisons, respondents were or- 
dered released from administrative detention and all material relevant 
to the incident in question was ordered expunged from their records. 
They were later paroled and released. But in the meantime, they 
brought suit in Federal District Court against petitioners, alleging a 
violation of various federal constitutional rights and seeking declaratory 
and injunctive relief and damages. After initially dismissing the com- 
plaint on the ground that petitioners were entitled to absolute immunity 
from liability, the District Court, on reconsideration, reinstated the suit. 
The case was tried to a jury, which found that petitioners had violated 
respondents' Fifth Amendment due process rights, and awarded dam- 
ages. The Court of Appeals affirmed, rejecting petitioners' claim for 
absolute immunity. 

Held: Petitioners are entitled to only qualified immunity. Pp. 199-208. 

727 F. 2d 669, affirmed. 

BLACKMUN, J., delivered the opinion of the Court, in which BRENNAN, 
MARSHALL, POWELL, STEVENS, and O'CONNOR, JJ., joined. REHN- 
QUIST, J., filed a dissenting opinion, in which BURGER, C. J., and 
WHITE, J., joined, post, p. 208. 

Deputy Solicitor General Geller argued the cause for peti- 
tioners. With him on the brief were Solicitor General Lee, 
Assistant Attorney General Trott, Samuel A. Alito f Jr., and 
Gloria C. Phares. 

G. Flint Taylor argued the cause for respondents. With 
him on the brief was Charles W. Hoffman.* 

*John K. Van de Ramp, Attorney General of California, Steve White, 
Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney 



194 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

JUSTICE BLACKMUN delivered the opinion of the Court. 

This case presents the issue whether members of a federal 
prison's Institution Discipline Committee, -who hear cases in 
-which inmates are charged with rules infractions, are entitled 
to absolute, as distinguished from qualified, immunity from 
personal damages liability for actions violative of the United 
States Constitution. 

I 

Respondents David Saxner and Alfred Cain, Jr., in Janu- 
ary 1975 were inmates at the Federal Correctional Institu- 
tion at Terre Haute, Ind. They were serving 4- and 5-year 
sentences, respectively, and each was within 18 months of a 
possible release date. Each was soon to appear before the 
parole board. The prison-conduct record of each was good. 
On January 6, 1975, William Lowe, a Negro inmate at 
Terre Haute died in the prison hospital. He was the first of 
four Negro inmates to die there within the ensuing 7-month 
period. A work stoppage to protest Lowe's death took place 
at the prison on January 7 and 8. Respondent Saxner, a 
white inmate who had served as a "jailhouse lawyer," and re- 
spondent Cain, a Negro inmate who was the librarian for the 
African and New World Cultural Society, assert that neither 
of them participated in the stoppage. See Brief for Re- 
spondents 1. Each, however, was active in gathering in- 
formation about Lowe's death and about conditions at the 
prison hospital, and in passing that information to the press, 
Members of Congress, prison officials, and Saxner's attor- 



General, William George Prahl, Supervising Deputy Attorney General, 
Susan J. Orton, Deputy Attorney General, Charles A. Graddick, Attorney 
General of Alabama, Michael A. Lilly, Attorney General of Hawaii, and 
A. G. McClintock, Attorney General of Wyoming, filed a brief for the 
State of California et al. as amid curiae urging reversal. 

Stephen M. Latimer filed a brief for Prisoners' Legal Services of New 
York, Inc. , et al. as amid curiae urging affirmance. 



CLEAVINGER v. SAXNER 195 

193 Opinion of the Court 

ney. 1 On February 14, respondents were cited in separate 
Incident Reports for encouraging other inmates to engage in 
work stoppage. App. 50, 52. Each was immediately placed 
in administrative segregation, that is, removed from the gen- 
eral inmate population, and assigned to a separate cell in an 
unused part of the hospital. See 28 CFR 541.20(b) (1985). 

On the following day, each respondent was given a copy 
of the Bureau of Prisons Policy Statement 7400. 5c (subject: 
Inmate Discipline) (Oct. 4, 1974). See App. 25-49. Saxner 
signed a written notice which explained his rights at a hear- 
ing to be held before an Institution Discipline Committee. 
Among these were the right to have a written copy of the 
charge; the right to have a member of the prison staff repre- 
sent him; the rights, except where institutional safety would 
be jeopardized, to be present at the hearing, to call wit- 
nesses, and to submit documentary evidence; and the right to 
receive a written explanation of the committee's decision. 
Id., at 54. 2 Although the record does not so disclose, we 
assume that respondent Cain received a similar notice at that 
time. 

Respondents were brought before the Institution Disci- 
pline Committee on February 21. The committee was com- 
posed of petitioners Theodore Cleavinger, Associate War- 
den, as chairman; Marvin Marcadis, correctional supervisor; 
and Tom P. Lockett, chief of case management. 8 



1 This activity apparently resulted in a visit to the Terre Haute facility 
by an Assistant Surgeon General and in a lawsuit concerning the last of the 
four hospital deaths. See Green v. Carlson, 581 F. 2d 669 (CAT 1978), 
aff' d, 446 U. S. 14 (1980). 

2 The Policy Statement did not provide for cross-examination, represen- 
tation by a lawyer, verbatim record of the proceeding, or nonagency or ju- 
dicial review. Neither did it specify the standard of proof or the standard 
of punishment. 

8 The Solicitor General advises us, see Brief for Petitioners 3, n. 4, that 
a committee of this kind at the Terre Haute facility usually was composed 
of three members. By regulation, the chairman and one other member 
must be of department-head level, or higher. See 28 CFR 541.16(b) 



196 OCTOBER TERM, 1986 

Opinion of the Court 474 U. S. 

Respondent Saxner was accompanied at the hearing by 
Ralph Smith, staff counselor, whom Saxner had selected to 
represent him. After reading the charge and reviewing 
Saxner's rights, the committee introduced Saxner's Incident 
Report and three documents found in his cell. These were, 
respectively, a "press release" Saxner had sent to 50 newspa- 
pers; a four-page document which detailed interviews with 
inmates about their medical treatment at the prison hospital; 
and a letter from Saxner to an American Civil Liberties 
Union lawyer, Saunders, which enclosed the other two 
documents and which discussed medical conditions, possible 
litigation on behalf of the Lowe family and other inmates, 
communications with the press, and the obtaining of local 
counsel. The press release, among other things, advocated 
administrative approval of a prisoners' union and amnesty for 
those who had participated in the work stoppage. Id. , at 81. 
Neither the investigating officer nor the charging officer nor 
any guard was called as a witness. Saxner, however, testi- 
fied and introduced affidavits of several inmates. His re- 
quest that he be permitted to call inmates to confirm that he 
did not encourage any work stoppage was denied on the 
ground that such testimony would be cumulative. While ad- 
mitting that he had written the press release and had mailed 
it to persons outside the prison without authorization, Saxner 
asserted his innocence on the specific charge referred. Id. , 
at 60, 71. 

The committee found respondent Saxner guilty of encour- 
aging a work stoppage. Also, although not specifically so 
charged, he was found guilty of unauthorized use of the mail 
and of possession of contraband, that is, material advocating 
an illegal prisoners' union. The committee ordered that 



(1985). The reporting officer, investigating officer, and any person who 
was a witness to the incident or played a significant part in having the 
charge referred, may not be a member of the committee except "where 
virtually every staff member in the institution witnessed the incident in 
whole or in part." Ibid. 



CLEAVINGER v. SAXNER 197 

193 Opinion of the Court 

Saxner be placed in administrative detention and forfeit 84 
days of "good time." His transfer to another institution was 
recommended. Id., at 57. 

Respondent Cain's hearing took place the same day before 
the same committee and immediately prior to Saxner's hear- 
ing. Id., at 64. He was accompanied by J. R. Alvarado, 
a staff representative. He was advised of his rights. His 
Incident Report was produced. Two documents found in 
his cell (Saxner's letter to Saunders and a manuscript con- 
cerning "Ideals and Proposals of the Prisoner Labor Union") 
were introduced. Cain testified and denied that he had en- 
couraged inmates not to work. He requested the right to 
cross-examine his accusers, but no other witness was called. 

At the conclusion of Cain's hearing, the committee found 
him guilty of encouraging a work stoppage and, although not 
specifically so charged, of possessing contraband, that is, 
"inflammatory material . . . supporting disruptive conduct in 
the institution." Id., at 65. The committee ordered that 
Cain be placed in administrative detention and forfeit 96 days 
of "good time." His transfer to another institution also was 
recommended. Ibid. 

Respondents appealed to the Warden of the institution. 
The Warden ordered their release from administrative deten- 
tion, restored the good time, and directed that each respond- 
ent's record carry a notation that "the incident not reflect 
unfavorably" upon consideration for parole. Id., at 74, 77. 
The Warden refused, however, to expunge respondents' 
records. Ibid. Saxner and Cain were released into the gen- 
eral prison population on March 21. 

Respondents next appealed to the Regional Director of the 
Bureau of Prisons. The Regional Director ruled that the 
disciplinary report, the action by the committee on the inci- 
dent, and material relevant thereto were to be expunged 
from each respondent's record. Id., at 79, 80. Thus, in the 
end, after these appeals, respondents obtained all the ad- 
ministrative relief they sought. But in the meantime, for a 



198 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

definite interval, each had been condemned (improperly as it 
turned out) to "administrative detention." 

Respondent Saxner was paroled and released in April 
1975. Respondent Cain was granted parole in June and 
released in December. 

Meanwhile, in March 1975, respondents brought suit in 
the United States District Court for the Southern District 
of Indiana against petitioners, the Terre Haute Warden, 
and the institution's administrative supervisor. Their third 
amended complaint alleged that the defendants had violated 
their rights under the First, Fourth, Fifth, Sixth, and Eighth 
Amendments. Id., at 12. See Bivens v. Six Unknown 
Fed. Narcotics Agents, 403 U. S. 388 (1971). Respondents 
sought declaratory and injunctive relief and compensatory 
damages. App. 22. 

The District Court granted petitioners' motion to dismiss 
the complaint on the ground that their functioning as hearing 
officers entitled them to absolute immunity. Nearly two 
years later, however, in April 1981, the District Court, on 
reconsideration, reinstated the suit in light of its controlling 
court's decision in Mary v. Ramsden, 635 F. 2d 590 (CA7 
1980), where the Court of Appeals held that members of a 
disciplinary committee at a Wisconsin juvenile facility were 
entitled to only qualified immunity. App. 23. 

The case then was tried to a jury. In response to special 
interrogatories, the jury found that petitioners had violated 
respondents' Fifth Amendment due process rights. 4 The 
jury awarded each respondent $1,500 compensatory damages 
against each petitioner, or a total of $4,500; each petitioner 
was thus subjected to liability totaling $3,000. Id., at 9. 

Petitioners' subsequent motion for judgment notwithstand- 
ing the verdict was denied. They appealed, contending, 



4 Judgment was entered in favor of the defendant Warden and the 
defendant administrative supervisor. Respondents did not contest this 
aspect of the judgment on appeal. 



CLEAVINGER v. SAXNER 199 

193 Opinion of the Court 

among other things, that, as members of the discipline 
committee, they were entitled to absolute immunity. 5 

The United States Court of Appeals for the Seventh Cir- 
cuit, by a divided vote, affirmed. Saxner v. Benson, 727 F. 
2d 669 (1984). It held that petitioners' claim for absolute im- 
munity was foreclosed by Seventh Circuit precedent denying 
such immunity to state correctional officers serving in a simi- 
lar capacity. Id., at 670. See Redding v. Fairman, 717 F. 
2d 1105, 1117 (1983), cert, denied, 465 U. S. 1025 (1984); 
Chavis v. Rowe, 643 F. 2d 1281, 1288, cert, denied sub nom. 
Boles v. Chavis, 454 U. S. 907 (1981); Mary v. Ramsden, 635 
F. 2d, at 600. Petitioners' request for rehearing en bane was 
denied by a vote of 5 to 4. App. to Pet. for Cert. 36a. 

Because of the importance of the issue, and because the 
Seventh Circuit rulings, although consistent with Jihaad v. 
O'Brien, 645 F. 2d 556, 561 (CA6 1981), were claimed to be in 
some conflict with the en bane decision of the Fourth Circuit 
in Ward v. Johnson, 690 F. 2d 1098 (1982), we granted certio- 
rari. 469 U. S. 1206 (1985). 

II 

A. This Court has observed: "Few doctrines were more 
solidly established at common law than the immunity of 
judges from liability for damages for acts committed within 
their judicial jurisdiction." Pierson v. Ray, 386 U. S. 547, 
553-554 (1967). The Court specifically has pronounced and 
followed this doctrine of the common law for more than a cen- 
tury. In Bradley v. Fisher, 13 Wall. 335 (1872), it ruled that 
a federal judge may not be held accountable in damages for a 
judicial act taken within his court's jurisdiction. Such immu- 
nity applies "however erroneous the act may have been, and 
however injurious in its consequences it may have proved to 

5 The sole question raised by petitioners in this Court is whether, as 
committee members, they were entitled to absolute immunity. Petition- 
ers state that they have not challenged although they do not concede 
the ruling that they violated "clearly established constitutional rights" of 
respondents. See Brief for Petitioners 7, n. 8. 



200 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

the plaintiff." Id., at 347. "Nor can this exemption of the 
judges from civil liability be affected by the motives with 
which their judicial acts are performed." Ibid. In Pierson 
v. Ray, supra, the Court held that absolute immunity 
shielded a municipal judge who was sued for damages tinder 
42 U. S. C. 1983 by clergymen who alleged that he had con- 
victed them unconstitutionally for a peaceful protest against 
racial segregation. The Court stressed that such immunity 
was essential to protect the integrity of the judicial process. 
386 U. S., at 554. And in Stump v. Sparkman, 435 U. S. 
349 (1978), the Court once again enunciated this principle, 
despite any "informality with which [the judge] proceeded," 
and despite any ex parte feature of the proceeding. Id. , at 
363, and n. 12. 

With this judicial immunity firmly established, the Court 
has extended absolute immunity to certain others who per- 
form functions closely associated with the judicial process. 
The federal hearing examiner and administrative law judge 
have been afforded absolute immunity. "There can be little 
doubt that the role of the modern federal hearing examiner or 
administrative law judge ... is 'functionally comparable' to 
that of a judge." Butz v. Economou, 438 U. S. 478, 513 
(1978). Full immunity also has been given to federal and 
state prosecutors. Yaselli v. Goff, 275 U. S. 503 (1927), 
aff'g 12 F. 2d 396 (CA2 1926); Imbler v. Pachtman, 424 
U. S. 409, 424-426 (1976). The same is true for witnesses, 
including police officers, who testify in judicial proceedings. 
Witnesses are "integral parts of the judicial process" and, 
accordingly, are shielded by absolute immunity. Briscoe v. 
LaHue, 460 U. S. 325, 335 (1983). And the Court has noted 
the adoption in this country of the principle of immunity for 
grand jurors. See Imbler v. Pachtman, 424 U. S., at 423, 
n. 20. See also Butz v. Economou, 438 U. S., at 509-510. 
Although this Court has not decided whether state parole 
officials enjoy absolute immunity as a matter of federal law, 
see Martinez v. California, 444 U. S. 277, 284 (1980), federal 



CLEAVINGER v. SAXNER 201 

193 Opinion of the Court 

appellate courts have so held. See, e. g., Sellars v. 
Procunier, 641 F. 2d 1295, 1303 (CA9), cert, denied, 454 
U. S. 1102 (1981); Evans v. Dillahunty, 711 F. 2d 828, 
830-831 (CAS 1983); United States ex rel. Powell v. Irving, 
684 F. 2d 494 (CAT 1982). 

B. The Court has extended absolute immunity to the 
President when damages liability is predicated on his official 
act. Nixon v. Fitzgerald, 457 U. S. 731, 744-758 (1982). 
See Harlow v. Fitzgerald, 457 U. S. 800, 807 (1982). "For 
executive officials in general, however, our cases make plain 
that qualified immunity represents the norm." Ibid. See 
Scheuer v. Rhodes, 416 U. S. 232 (1974) (State Governor and 
his aides); Harlow v. Fitzgerald, supra (Presidential aides); 
Butz v. Economou, supra (Cabinet member, acknowledging, 
however, that there are "those exceptional situations where 
it is demonstrated that absolute immunity is essential for the 
conduct of the public business," 438 U. S., at 507); Procunier 
v. Navarette, 434 U. S. 555 (1978) (state prison officials); 
Wood v. Strickland, 420 U. S. 308 (1975) (school board mem- 
bers); Pierson v. Ray, supra (police officers). Spalding v. 
Vilas, 161 U. S. 483 (1896) (Postmaster General), and Barr 
v. Matteo, 360 U. S. 564 (1959) (Government officials), where 
full immunity was afforded, both antedated Bivens. In any 
event, "federal officials who seek absolute exemption from 
personal liability for unconstitutional conduct must bear the 
burden of showing that public policy requires an exemption of 
that scope." Butz v. Economou, 438 U. S., at 506; Harlow 
v. Fitzgerald, 457 U. S., at 808. 

C. The Court has said that "in general our cases have fol- 
lowed a 'functional' approach to immunity law." Id., at 810. 
"[O]ur cases clearly indicate that immunity analysis rests on 
functional categories, not on the status of the defendant." 
Briscoe v. LaHue, 460 U. S., at 342. Absolute immunity 
flows not from rank or title or "location within the Govern- 
ment," Butz v. Economou, 438 U. S., at 511, but from the 
nature of the responsibilities of the individual official. And 



202 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

in Butz the Court mentioned the following factors, among 
others, as characteristic of the judicial process and to be con- 
sidered in determining absolute as contrasted with qualified 
immunity: (a) the need to assure that the individual can per- 
form his functions without harassment or intimidation; (b) the 
presence of safeguards that reduce the need for private dam- 
ages actions as a means of controlling unconstitutional con- 
duct; (c) insulation from political influence; (d) the importance 
of precedent; (e) the adversary nature of the process; and (f) 
the correctability of error on appeal. Id., at 512. 

Ill 

We turn to the application of these principles to the facts of 
the present case. Judge Cudahy of the Court of Appeals, in 
his separate concurring opinion, 727 F. 2d, at 673, stressed 
the Butz factors and was persuaded by what he felt were the 
absence of procedural safeguards, the rare and exceptional 
character of absolute immunity, and the need for such immu- 
nity only when public policy requires it. Id., at 674-676. 

Petitioners, in response, and seemingly in order to negate 
the significance of certain of the specified factors, point out 
that grand jury proceedings possess few procedural safe- 
guards that are associated with court proceedings, and are 
largely immune from any type of judicial review. See, e. g. , 
United States v. Calandra, 414 U. S. 338, 345 (1974); Cos- 
tello v. United States, 350 U. S. 359 (1956). Petitioners also 
observe that prosecutor ial decisionmaking is not subject to 
the formalities of trials; instead, the prosecutor exercises 
broad and generally unreviewable discretion. Yet grand 
jurors and prosecutors enjoy absolute immunity. Petition- 
ers finally argue that the Court's cases teach that absolute 
immunity shields an official if (a) the official performs an ad- 
judicatory function comparable to that of a judge, (b) the 
function is of sufficient public importance, and (c) the proper 
performance of that function would be subverted if the offi- 



CLEAVINGER v. SAXNER 203 

193 Opinion of the Court 

cial were subjected to individual suit for damages. Brief for 
Petitioners 21. 

When we evaluate the claim of immunity for the commit- 
tee members, we bear in mind that immunity status is for 
the benefit of the public as well as for the individual con- 
cerned. Pierson v. Ray, 386 U. S. , at 554. The committee 
members, in a sense, do perform an adjudicatory function in 
that they determine whether the accused inmate is guilty or 
innocent of the charge leveled against him; in that they hear 
testimony and receive documentary evidence; in that they 
evaluate credibility and weigh evidence; and in that they 
render a decision. We recognize, too, the presence of some 
societal importance in this dispute-resolution function. The 
administration of a prison is a difficult undertaking at best, 
for it concerns persons many of whom have demonstrated 
a proclivity for antisocial, criminal, and violent conduct. 
See Hudson v. Palmer, 468 U. S. 517, 526-527 (1984). We 
also acknowledge that many inmates do not refrain from ha- 
rassment and intimidation. The number of nonmeritorious 
prisoners' cases that come to this Court's notice is evidence of 
this. Tension between prison officials and inmates has been 
described as "unremitting." Wolff v. McDonnell, 418 U. S. 
539, 562 (1974). "Retaliation is much more than a theoretical 
possibility." Ibid. And we do not underestimate the fact, 
stressed by petitioners, that committee members usually are 
persons of modest means and, if they are suable and unpro- 
tected, perhaps would be disinclined to serve on a discipline 
committee. See Ward v. Johnson, 690 F. 2d, at 1108. 

We conclude, nonetheless, that these concerns, to the ex- 
tent they are well grounded, are overstated in the context of 
constitutional violations. We do not perceive the discipline 
committee's function as a "classic" adjudicatory one, as peti- 
tioners would describe it. Tr. of Oral Arg. 9-10. Surely, 
the members of the committee, unlike a federal or state 
judge, are not "independent"; to say that they are is to ignore 
reality. They are not professional hearing officers, as are 



204 OCTOBEE TERM, 1985 

Opinion of the Court 474 U, S. 

administrative law judges. They are, instead, prison offi- 
cials, albeit no longer of the rank and file, temporarily di- 
verted from their usual duties. See Ward v. Johnson, 690 
F. 2d, at 1115 (dissenting opinion). They are employees of 
the Bureau of Prisons and they are the direct subordinates of 
the warden who reviews their decision. They work with the 
fellow employee who lodges the charge against the inmate 
upon whom they sit in judgment. The credibility determina- 
tion they make often is one between a co-worker and an in- 
rnate. They thus are under obvious pressure to resolve a 
disciplinary dispute in favor of the institution and their fellow- 
employee. See Ponte v. Real, 471 U. S. 491, 513 (1985) (dis- 
senting opinion). It is the old situations! problem of the rela- 
tionship between the keeper and the kept, a relationship that 
hardly is conducive to a truly adjudicatory performance. 
Neither do we equate this discipline committee member- 
ship to service upon a traditional parole board. The board 
is a "neutral and detached" hearing body. Morrissey v. 
Brewer, 408 U. S. 471, 489 (1972). The parole board mem- 
ber has been described as an impartial professional serving 
essentially " 'as an arm of the sentencing judge.' " Sellars v. 
Procunier, 641 P. 2d., at 1302, n. 15, quoting Bricker v. 
Michigan Parole Board, 405 F. Supp. 1340, 1345 (ED Mich. 
1975). And in the penalty context, the parole board is con- 
stitutionally required to provide greater due process protec- 
tion than is the institution discipline committee. Wolff v. 
McDonnell, 418 U. S., at 561. 

"We relate this committee membership, instead, to the 
school board service the Court had under consideration in 
Wood v. Strickland, 420 U. S. 308 (1975). The school board 
members were to function as "adjudicators in the school disci- 
plinary process," and they were to "judge whether there 
have been violations of school regulations and, if so, the ap- 
propriate sanctions for the violations. " Id. , at 3 19. Despite 
the board's adjudicative function of that extent, the Court 
concluded that the board members were to be protected by 



CLEAVINGER u SAXNER 205 

193 Opinion of the Court 

only qualified immunity. After noting the suggestion of the 
presence of a deterrence-from-service factor, the Court con- 
cluded that "absolute immunity would not be justified since it 
would not sufficiently increase the ability of school officials to 
exercise their discretion in a forthright manner to warrant 
the absence of a remedy for students subjected to intentional 
or otherwise inexcusable deprivations." Id., at 320. 

That observation and conclusion are equally applicable 
here. It is true, of course, that the "prisoner and the school- 
child stand in wholly different circumstances, separated by 
the harsh facts of criminal conviction and incarceration." 
Ingraham v. Wright, 430 U. S. 651, 669 (1977). But in 
Ingraham it was also said that even if schoolchildren and 
their parents do not have a prisoner's motive or proclivity to 
institute harassing lawsuits, they have 'little need for the 
protection of the Eighth Amendment," for "the openness of 
the public school and its supervision by the community afford 
significant safeguards against the kinds of abuses from which 
the Eighth Amendment protects the prisoner." Id., at 670. 
If qualified immunity is sufficient for the schoolroom, it 
should be more than sufficient for the jailhouse where the 
door is closed, not open, and where there is little, if any, 
protection by way of community observation. 

Petitioners assert with some vigor that procedural formal- 
ity is not a prerequisite for absolute immunity. They refer 
to well-known summary and ex parte proceedings, such as 
the issuance of search warrants and temporary restraining 
orders, and the setting of bail. And they sound a note of 
practicality by stating that recasting prison disciplinary tri- 
bunals in the mold of formal administrative bodies would be 
inimical to the needs of prison discipline and security. It is 
said that committee procedures fully comply with, and indeed 
exceed, what Wolff v. McDonnell, supra, requires, that they 
are sufficiently "judicial" to qualify for absolute immunity, 
and that Wo Iff "would be undone" as a practical matter if ab- 
solute immunity were not afforded. Brief for Petitioners 30. 



206 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

In any event, it is asserted, committee proceedings contain 
ample safeguards to ensure the avoidance or correction of 
constitutional errors. Among these are the qualifications for 
committee service; prior notice to the inmate; representation 
by a staff member; the right to present certain evidence at 
the hearing; the right to be present; the requirement for a 
detailed record; the availability of administrative review at 
three levels (demonstrated by the relief obtained on review 
by these respondents at the first two levels); and the avail- 
ability of ultimate review in federal court under 28 U. S. C. 
2241. Finally, it is said that qualified immunity would 
provide insufficient protection for committee members. 

We are not persuaded. To be sure, the line between 
absolute immunity and qualified immunity often is not an 
easy one to perceive and structure. That determination in 
this case, however, is not difficult, and we readily conclude 
that these committee members fall on the qualified-immunity 
side of the line. 

Under the Bureau's disciplinary policy in effect at the time 
of respondents' hearings, few of the procedural safeguards 
contained in the Administrative Procedure Act under con- 
sideration in Butz were present. The prisoner was to be 
afforded neither a lawyer nor an independent nonstaff repre- 
sentative. There was no right to compel the attendance of 
witnesses or to cross-examine. There was no right to dis- 
covery. There was no cognizable burden of proof. No ver- 
batim transcript was afforded. Information presented often 
was hearsay or self-serving. The committee members were 
not truly independent. In sum, the members had no identifi- 
cation with the judicial process of the kind and depth that has 
occasioned absolute immunity. 

Qualified immunity, however, is available to these commit- 
tee members. That, we conclude, is the proper point at 
which to effect the balance between the opposing consider- 
ations. This less-than-absolute protection is not of small 
consequence. As the Court noted in Butz, 438 U. S., at 



CLEAVINGER v. SAXNER 207 

193 Opinion of the Court 

507-508, insubstantial lawsuits can be recognized and be 
quickly disposed of, and firm application of the Federal Rules 
of Civil Procedure "will ensure that federal officials are not 
harassed by frivolous lawsuits." Id., at 508. All the com- 
mittee members need to do is to follow the clear and simple 
constitutional requirements of Wolff v. McDonnell, supra; 
they then should have no reason to fear substantial harass- 
ment and liability. Qualified immunity has been widely 
imposed on executive officials who possess greater respon- 
sibilities. See, e. g., Scheuer v. Rhodes, Butz v. Economou, 
Harlow v. Fitzgerald, all supra, and Mitchell v. Forsyth, 472 
U. S. 511 (1985). "[I]t is not unfair to hold liable the official 
who knows or should know he is acting outside the law, and 
. . . insisting on an awareness of clearly established constitu- 
tional limits will not unduly interfere with the exercise of offi- 
cial judgment." Butz v. Economou, 438 U. S., at 506-507. 
See also Barr v. Matteo, 360 U. S., at 588-589 (BREN- 
NAN, J., dissenting); Bivens v. Six Unknown Fed. Narcotics 
Agents, 403 U. S., at 411 (Harlan, J., concurring in judg- 
ment). See Gray, Private Wrongs of Public Servants, 47 
Calif. L. Rev. 303, 339 (1959). Public policy has not dictated 
otherwise. 

It is the business of prison officials, of course, to maintain 
order within their institutions. But this fact does not sup- 
port a claim that every step taken to protect constitutional 
rights of prisoners will lead to a breakdown in institutional 
discipline and security. Routine and automatic arguments 
to this effect have been made before and have been rejected 
by this Court. See Johnson v. Avery, 393 U. S. 483, 
486-487 (1969); Lee v. Washington, 390 U. S. 333, 334 (1968); 
Ex parte Hull, 312 U. S. 546 (1941). 

We likewise are not impressed with the argument that 
anything less than absolute immunity will result in a flood of 
litigation and in substantial procedural burdens and expense 
for committee members. This argument, too, has been 
made before. But this Court's pronouncements in Harlow 



208 OCTOBER TERM, 1985 

REHNQUIST, J., dissenting 474 U. S. 

v. Fitzgerald, 457 U. S., at 813-820, place the argument in 
appropriate perspective, for many cases may be disposed of 
without the necessity of pretrial discovery proceedings. Our 
experience teaches us that the vast majority of prisoner cases 
are resolved on the complaint alone. Of those prisoners 
whose complaints survive initial dismissal, few attempt dis- 
covery and fewer still actually obtain it. See Turner, When 
Prisoners Sue: A Study of Prisoner Section 1983 Suits in 
the Federal Courts, 92 Harv. L. Rev. 610 (1979). And any 
expense of litigation largely is alleviated by the fact that 
a Government official who finds himself as a defendant in 
litigation of this kind is often represented, as in this case, 
by Government counsel. If the problem becomes acute, the 
Government has alternatives available to it: it might decide 
to indemnify the defendant official; Congress could make the 
claim a subject for the Federal Tort Claims Act; and Con- 
gress could even consider putting in place administrative law 
judges to preside at prison committee hearings. 
The judgment of the Court of Appeals is affirmed. 

It is so ordered. 

JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and 
JUSTICE WHITE join, dissenting. 

The Court concludes that the members of the Institution 
Discipline Committee of a federal prison are more like school 
board members than they are like administrative law judges 
or members of a parole board, and that therefore they are not 
entitled to absolute immunity from liability for damages. 
Concededly the hearings in which these officials perform 
their adjudicatory function do not include all of the proce- 
dural safeguards or the adherence to written precedent that 
surround the function of an administrative law judge, but I 
do not read Butz v. Econoniou, 438 U. S. 478 (1978), as mak- 
ing these factors dispositive against a claim for absolute im- 
munity. I also think that the factors peculiar to the prison 



CLEAVINGER u SAXNER 209 

193 REHNQUIST, J., dissenting 

environment counsel in favor of such an immunity for these 
officials. 

Litigation before administrative law judges is generally 
conducted by lawyers, who are trained to suppress their dis- 
like of, or contempt for, the particular judge before whom 
they try their case. The lawyers and their clients come from 
their homes and hotels to a government building in the morn- 
ing, present their case to the judge, go and have lunch, re- 
turn in the afternoon, and again present their case. When 
the court recesses for the day, the parties and their lawyers 
return to their homes and hotels. At least one side will be 
disappointed with the ultimate ruling of the judge, but there 
is little reason to think that they will bear personal animus or 
hostility toward the judge as a result of his decision. 

Inside the prison walls, however, a considerably different 
atmosphere appears to obtain. A prisoner charged with a 
serious violation of prison regulations and threatened with 
administrative detention and loss of good time may have 
quite different emotions when appearing before the Institu- 
tion Discipline Committee than does, for example, the plant 
manager of an employer charged with a violation of the Na- 
tional Labor Relations Act appearing before an adminis- 
trative law judge. "Prison life, and relations between the 
inmates themselves and between the inmates and prison offi- 
cials or staff, contain the ever-present potential for violent 
confrontation and conflagration." Jones v. North Carolina 
Prisoners 9 Labor Union, 433 U. S. 119, 132 (1977). 

Our observations in Preiser v. Rodriguez, 411 U. S. 475 
(1973), about the relationship between a State and its prison- 
ers are equally applicable to the relationship between the 
Federal Government and its prisoners: 

"The relationship of state prisoners and the state officers 
who supervise their confinement is far more intimate 
than that of a State and a private citizen. For state 
prisoners, eating, sleeping, dressing, washing, working, 
and playing are all done under the watchful eye of the 



210 OCTOBER TERM, 1985 

REHNQUIST, J., dissenting 474 U. S. 

State, and so the possibilities for litigation under the 
Fourteenth Amendment are boundless. What for a pri- 
vate citizen would be a dispute with his landlord, with 
his employer, with his tailor, with his neighbor, or with 
his banker becomes, for the prisoner, a dispute with the 
State." Id., at 492. 

In Wolff v. McDonnell, 418 U. S. 539 (1974), our first 
major decision applying the Due Process Clause of the Four- 
teenth Amendment to prison disciplinary proceedings, we 
said: 

"Prison disciplinary proceedings . . . take place in a 
closed, tightly controlled environment peopled by those 
who have chosen to violate the criminal law and who 
have been lawfully incarcerated for doing so. Some are 
first offenders, but many are recidivists who have re- 
peatedly employed illegal and often very violent means 
to attain their ends. They may have little regard for the 
safety of others or their property or for the rules de- 
signed to provide an orderly and reasonably safe prison 
life. . . . Guards and inmates co-exist in direct and inti- 
mate contact. Tension between them is unremitting. 
Frustration, resentment, and despair are commonplace. 
Relationships among the inmates are varied and complex 
and perhaps subject to the unwritten code that exhorts 
inmates not to inform on a fellow prisoner." Id., at 
561-562. 

Not only may emotions run higher and tensions be exacer- 
bated in the prison environment, but prisoners simply are not 
subject to many of the constraints which often deter mem- 
bers of the population at large from litigating at the drop of a 
hat. We have held, for example, that prisoners in confine- 
ment are entitled to free access to lawbooks or some other 
legal assistance. Bounds v. Smith, 430 U. S. 817 (1977). 
And the great majority of prisoners qualify for in forma 
pauperis status, which entitles them to relief from statutory 



CLEAVINGER v. SAXNER 211 

193 REHNQUIST, J., dissenting 

filing fees. With less to profitably occupy their time than 
potential litigants on the outside, and with a justified feeling 
that they have much to gain and virtually nothing to lose, 
prisoners appear to be far more prolific litigants than other 
groups in the population. And prisoners have made increas- 
ing use of 1983 and Bivens-type suits in recent years: 18,856 
such suits were filed in federal court in the year ending June 
30, 1984, as compared to just 6,606 in 1975. Administrative 
Office of the United States Courts, Annual Report of the 
Director 143, Table 24 (1984). 

In light of the foregoing, I think a slightly different balanc- 
ing of the ledger is called for in the case of prison disciplinary 
officials than in the case of administrative law judges. The 
latter are surrounded by greater procedural protections for 
the litigants, and are governed by precedent. But the for- 
mer operate in a far more volatile environment, are called 
upon to make decisions more quickly, and are much more 
likely to be the object of harassing litigation in the absence of 
absolute immunity. If in fact the administrative system set 
up by the government offers administrative relief from these 
officials' mistakes, and thereby permits the vindication of 
constitutional claims in this manner, I believe that the grant 
of absolute immunity meets the conditions set out in Butz v. 
Economou, 438 U. S. 478 (1978). 

Here we need not look far for the availability or speed of 
administrative relief. Both respondents appeared before 
the Institution Discipline Committee on February 21, 1975. 
A few days later that committee issued its ruling, and 
respondents appealed to the Warden. On March 21, 1975, 
the Warden granted most of the relief requested, ordering 
respondents released from administrative segregation and 
restoring their forfeited good time. He also directed that 
their records carry a notation that the incident should not ad- 
versely affect their chances for parole. Respondents then 
appealed to the Regional Director of the Bureau of Prisons, 
who on April 11, 1975, granted respondents' final request 



212 OCTOBEE TERM, 1985 

KEHNQUIST, J., dissenting 474 U. S. 

that all mention of the incident be expunged from their 
records. The entire administrative proceeding, from the 
day on which the hearing before the committee was held to 
the final ruling of the Regional Director granting respondents 
all of the relief requested, took less than two months, 

In Price v. Jotouftm, 334 U. S. 266 (1948), we said that 
"Qlawml incarceration brings about the necessary with- 
drawal or limitation of many privileges and rights, a re- 
traction justified by the considerations underlying our penal 
system," li, at 285, It requires no more than a common- 
sense application of this observation to the general principles 
laid down in Mi, supra, to conclude that the members of 
the Institution Discipline Committee are entitled to absolute 
immunity from liability for their decisions. 

I respectfully dissent, 



EASTERN AIR LINES u MAHFOUD 213 

Per Curiam 



EASTERN AIR LINES, INC. v. MAHFOUD ON BEHALF 
OF MAHFOUD ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 
THE FIFTH CIRCUIT 

No. 83-1807. Argued January 15, 1985 Reargued October 9, 1985 
Decided December 10, 1985 

729 F. 2d 777, affirmed by an equally divided Court. 

Richard M. Sharp reargued the cause for petitioner. 
With him on the briefs were Jeffrey C. Martin, Suzanne 
E. Meeker, Francis G. Weller, and Marc J. Yellin. 

George E. Farrell reargued the cause and filed a brief for 
respondent. * 

PER CURIAM. 

The judgment is affirmed by an equally divided Court. 

JUSTICE BRENNAN took no part in the decision of this case. 



*Juanita M. Madole and Donald W. Madole filed a brief for Dina 
Avecilla et al. as amid curiae urging affirmance. 



214 OCTOBER TERM, 1985 

Syllabus 474 U. S. 

REGENTS OF THE UNIVERSITY OF MICHIGAN v. 

EWING 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 
THE SIXTH CIRCUIT 

No. 84-1273. Argued October 8, 1985 Decided December 12, 1985 

Respondent was enrolled in a 6-year program of study at the University of 
Michigan known as "Inteflex." An undergraduate degree and a medical 
degree are awarded upon successful completion of the program. To 
qualify for the final two years of the program a student must pass an 
examination known as "NBME Part I." Respondent was dismissed 
from the University when he failed this examination with the lowest 
score recorded in the history of the Inteflex program. After unsuccess- 
fully seeking, from University authorities, readmission to the program 
and an opportunity to retake the examination, respondent brought suit 
in Federal District Court, alleging a right to retake the examination on 
the ground, inter alia, that he had a property interest in the Inteflex 
program and that his dismissal was arbitrary and capricious in violation 
of his "substantive due process rights" guaranteed by the Fourteenth 
Amendment. While determining that respondent had a constitutionally 
protected property interest in continued enrollment in the Inteflex pro- 
gram, the District Court found no violation of his due process rights. 
The Court of Appeals reversed. 

Held. Even if respondent's assumed property interest gave rise to a 
substantive right under the Due Process Clause to continue enrollment 
free from arbitrary state action, the facts of record disclose no such 
action. The record unmistakably demonstrates that the decision to dis- 
miss respondent was made conscientiously and with careful deliberation, 
based on an evaluation of his entire academic career at the University, 
including his singularly low score on the NBME Part I examination. 
The narrow avenue for judicial review of the substance of academic deci- 
sions precludes any conclusion that such decision was such a substantial 
departure from accepted academic norms as to demonstrate that the fac- 
ility did not exercise professional judgment. Pp. 222-228. 
742 F. 2d 913, reversed and remanded. 

STEVENS, J., delivered the opinion for a unanimous Court. POWELL, 
J., filed a concurring opinion, post, p. 228. 

Roderick K. Daane argued the cause for petitioner. With 
him on the briefs was Peter A. Davis. 



REGENTS OF UNIVERSITY OF MICHIGAN v. EWING 215 
214 Opinion of the Court 

Michael M. Conway argued the cause for respondent. 
With him on the brief was Mary K. Butler. * 

JUSTICE STEVENS delivered the opinion of the Court. 

Respondent Scott Ewing was dismissed from the Univer- 
sity of Michigan after failing an important written examina- 
tion. The question presented is whether the University's 
action deprived Ewing of property without due process of 
law because its refusal to allow him to retake the examina- 
tion was an arbitrary departure from the University's past 
practice. The Court of Appeals held that his constitutional 
rights were violated. We disagree. 

I 

In the fall of 1975 Ewing enrolled in a special 6-year pro- 
gram of study, known as "Inteflex," offered jointly by the 
undergraduate college and the Medical School. 1 An under- 
graduate degree and a medical degree are awarded upon suc- 
cessful completion of the program. In order to qualify for 
the final two years of the Inteflex program, which consist of 
clinical training at hospitals affiliated with the University, 
the student must successfully complete four years of study 
including both premedical courses and courses in the basic 
medical sciences. The student must also pass the "NBME 

*Bnefs of amici cunae urging reversal were filed for the United States 
by Acting Solicitor General Wallace, Acting Assistant Attorney General 
Willard, Deputy Solicitor General Geller, Leonard Schaitman, and Freddi 
Lipstein; for the American Council on Education et al. by Eugene D Gul- 
land, Catherine W. Brown, Sheldon Elliot Steinbach, and Joseph Anthony 
Keyes, Jr., for the Curators of the University of Missouri et al. by Marvin 
E. Wright and William F Arnet; and for Duke University et al. by Rob- 
ert B, Donin, Daniel Steiner, Eugene J McDonald, Estelle A Fishbein, 
Michael C. Weston, and Peter H. Ruger. 

Michael H Gottesman, Robert M Weinberg, Joy L Koletsky, Laurence 
Gold, and David M. Silbennan filed a brief for the National Education 
Association et al. as amici cunae urging affirmance. 

Anne H. Franke and Jacqueline W. Mintz filed a brief for the American 
Association of University Professors as amicus cunae 

1 The Intefiex program has since been lengthened to seven years 



216 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

Part I" a 2-day written test administered by the National 
Board of Medical Examiners. 

In the spring of 1981, after overcoming certain academic 
and personal difficulties, Ewing successfully completed the 
courses prescribed for the first four years of the Inteflex 
program and thereby qualified to take the NBME Part I. 
Ewing failed five of the seven subjects on that examination, 
receiving a total score of 235 when the passing score was 345. 
(A score of 380 is required for state licensure and the national 
mean is 500.) Ewing received the lowest score recorded by 
an Inteflex student in the brief history of that program. 

On July 24, 1981, the Promotion and Review Board individ- 
ually reviewed the status of several students in the Inteflex 
program. After considering Ewing's record in some detail, 
the nine members of the Board in attendance voted unani- 
mously to drop him from registration in the program. 

In response to a written request from Ewing, the Board 
reconvened a week later to reconsider its decision. Ewing 
appeared personally and explained why he believed that his 
score on the test did not fairly reflect his academic progress 
or potential. 2 After reconsidering the matter, the nine vot- 
ing members present unanimously reaffirmed the prior action 
to drop Ewing from registration in the program. 

In August, Ewing appealed the Board's decision to the 
Executive Committee of the Medical School. After giving 
Ewing an opportunity to be heard in person, the Executive 
Committee unanimously approved a motion to deny his ap- 
peal for a leave of absence status that would enable him to 
retake Part I of the NBME examination. In the following 



2 At this and later meetings Ewing excused his NBME Part I failure 
because his mother had suffered a heart attack 18 months before the 
examination; his girlfriend broke up with him about six months before the 
examination; his work on an essay for a contest had taken too much time; 
his makeup examination in pharmacology was administered just before the 
NBME Part I; and his inadequate preparation caused him to panic during 
the examination. 



REGENTS OF UNIVERSITY OF MICHIGAN u EWING 217 
214 Opinion of the Court 

year, Ewing reappeared before the Executive Committee on 
two separate occasions, each time unsuccessfully seeking 
readmission to the Medical School. On August 19, 1982, he 
commenced this litigation in the United States District Court 
for the Eastern District of Michigan. 

II 

E wing's complaint against the Regents of the University of 
Michigan asserted a right to retake the NBME Part I test on 
three separate theories, two predicated on state law and one 
based on federal law. 3 As a matter of state law, he alleged 
that the University's action constituted a breach of contract 
and was barred by the doctrine of promissory estoppel. As a 
matter of federal law, Ewing alleged that he had a property 
interest in his continued enrollment in the Inteflex program 
and that his dismissal was arbitrary and capricious, violat- 
ing his "substantive due process rights" guaranteed by the 
Fourteenth Amendment and entitling him to relief under 42 
U. S. C. 1983. 

The District Court held a 4-day bench trial at which it took 
evidence on the University's claim that Ewing's dismissal 
was justified as well as on Ewing's allegation that other 
University of Michigan medical students who had failed the 
NBME Part I had routinely been given a second opportunity 
to take the test. The District Court described Ewing's un- 
fortunate academic history in some detail. Its findings, set 
forth in the margin, 4 reveal that Ewing "encountered imme- 

3 A fourth count of Ewing's complaint advanced a claim for damages 
under 42 U. S. C. 1983. The District Court held that the Board of 
Regents is a state instrumentality immunized from liability for damages 
under the Eleventh Amendment, and dismissed this count of the com- 
plaint. Ewing v. Board of Regents, 552 F. Supp. 881 (ED Mich. 1982). 

4 "In the fall of 1975, when Ewing enrolled in the program, he encoun- 
tered immediate difficulty in handling the work and he did not take the 
final examination in Biology. It was not until the following semester that 
he completed this course and received a C. His performance in his other 
first semester courses was as follows: a C in Chemistry 120, a C in his writ- 
ing course, and an incomplete in the Freshman Seminar. In the next se- 



218 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

diate difficulty in handling the work," Ewing v. Board of Re- 
gents, 559 F. Supp. 791, 793 (1983), and that his difficulties 
in the form of marginally passing grades and a number of 



mester he took Chemistry 220, a Freshman Seminar, and Psychology 504. 
He received a B in the Freshman Seminar, a C in Chemistry 220, but he 
withdrew from Psychology 504. He was advised at that time that he could 
not take the Patient Care Course, usually given during the fall of an 
Inteflex student's second year, and he was placed on an irregular program. 
Because of these difficulties, at the July 14, 1976 meeting of the Promotion 
and Review Board he requested a leave of absence, and when this was 
approved, he left the program. 

"During the summer of 1976 while on leave, he took two Physics courses 
at Point Loma College in California. He reentered the Inteflex program 
at the University of Michigan in the winter 1977 term. In that term he 
repeated Chemistry 220 in which he received an A-. In the spring of 
1977, he passed the Introduction to the Patient Care course. 

"In the 1977-78 year, he completed the regular Year II program. But 
then he encountered new difficulty. In the faU of 1978 he received an 
incomplete in Clinical Studies 400, which was converted to a Pass; a B in 
Microbiology 420; and an incomplete in Gross Anatomy 507. The Gross 
Anatomy incomplete was converted to a C by a make-up examination. 
During the winter of 1979 he received a C in Genetics 505, a C in Microbi- 
ology 520, an E in Microanatomy and General Pathology 506, a B in Cre- 
ative Writing, and a Pass in Clinical Studies 410. He appealed the Micro- 
anatomy and General Pathology grade, requesting a change from an E to 
a D, and a make-up exam to receive a Pass. His appeal was denied by the 
Grade Appeal Committee, and he was again placed on an irregular pro- 
gram; he took only the Clinical Studies 420 course in the spring 1979 
semester. 

"In July 1979, Ewing submitted a request to the Promotion and Review 
Board for an irregular program consisting of a course in Pharmacology in 
the fall and winter 1979-80 and a course in Human Illness and Neurosci- 
ence in 1980-81, thus splitting the fourth year into two years. The Board 
denied this request and directed him to take the fourth year curriculum in 
one academic year. He undertook to do so. He removed his deficiency in 
Microanatomy and General Pathology 506 by repeating the course during 
the winter 1980 semester and received a C 4- . In the spring term of 1980 
he passed Developmental Anatomy with a B - grade, and he received a C 
grade in Neuroscience I 509 after a reexamination. In the fall of 1980, he 
received a passing grade in Neuroscience 609 and Pharmacology 626, and 
in the winter term of 1981, he received a passing grade in Clinical Studies 



REGENTS OF UNIVERSITY OF MICHIGAN u EWING 219 
214 Opinion of the Court 

incompletes and makeup examinations, many experienced 
while Ewing was on a reduced course load persisted 
throughout the 6-year period in which he was enrolled in the 
Inteflex program. 

Ewing discounted the importance of his own academic 
record by offering evidence that other students with even 
more academic deficiencies were uniformly allowed to retake 
the NBME Part I. See App. 107-111. The statistical evi- 
dence indicated that of the 32 standard students in the Medi- 
cal School who failed Part I of the NBME since its inception, 
all 32 were permitted to retake the test, 10 were allowed 
to take the test a third time, and 1 a fourth time. Seven 
students in the Inteflex program were allowed to retake the 
test, and one student was allowed to retake it twice. Ewing 
is the only student who, having failed the test, was not per- 
mitted to retake it. Dr. Robert Reed, a former Director 
of the Inteflex program and a member of the Promotion and 
Review Board, stated that students were "routinely" given 
a second chance. 559 F. Supp., at 794. Accord, App. 8, 
30, 39-40, 68, 73, 163. Ewing argued that a promotional 
pamphlet released by the Medical School approximately a 
week before the examination had codified this practice. The 
pamphlet, entitled "On Becoming a Doctor," stated: 

"According to Dr. Gibson, everything possible is done to 
keep qualified medical students in the Medical School. 
This even extends to taking and passing National Board 
Exams. Should a student fail either part of the Na- 
tional Boards, an opportunity is provided to make up the 
failure in a second exam." Id., at 113. 

The District Court concluded that the evidence did not 
support either Ewing's contract claim or his promissory es- 



510 and a deficiency in Pharmacology 627. He was given a makeup exami- 
nation in this course, and he received a 67.7 grade. 

"He then took Part I of the NBME . . . ." Ewing v. Board of Regents, 
559 F. Supp., at 793-794. 



220 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

toppel claim under governing Michigan law. There was "no 
sufficient evidence to conclude that the defendants bound 
themselves either expressly or by a course of conduct to 
give Ewing a second chance to take Part I of the NBME 
examination." 559 F. Supp., at 800. With reference to the 
pamphlet "On Becoming A Doctor," the District Court held 
that "even if [Ewing] had learned of the pamphlet's contents 
before he took the examination, and I find that he did not, 
I would not conclude that this amounted either to an unquali- 
fied promise to him or gave him a contract right to retake the 
examination. " Ibid. 

With regard to Ewing's federal claim, the District Court 
determined that Ewing had a constitutionally protected 
property interest in his continued enrollment in the Inteflex 
program and that a state university's academic decisions con- 
cerning the qualifications of a medical student are "subject 
to substantive due process review" in federal court. Id., 
at 798. The District Court, however, found no violation of 
Ewing's due process rights. The trial record, it emphasized, 
was devoid of any indication that the University's decision 
was "based on bad faith, ill will or other impermissible ulte- 
rior motives"; to the contrary, the "evidence demonstrate [d] 
that the decision to dismiss plaintiff was reached in a fair and 
impartial manner, and only after careful and deliberate con- 
sideration." Id., at 799. To "leave no conjecture" as to his 
decision, the District Judge expressly found that "the evi- 
dence demonstrate^] no arbitrary or capricious action since 
[the Regents] had good reason to dismiss Ewing from the 
program." Id., at 800. 

Without reaching the state-law breach-of-contract and 
promissory-estoppel claims, 5 the Court of Appeals reversed 
the dismissal of Ewing's federal constitutional claim. The 

5 In a footnote, the Court of Appeals stated: "Because we believe this 
case can be disposed of on the Section 1983 claim, this Court does not 
expressly reach the breach of contract or promissory estoppel claims." 
Ewvng v. Board of Regents, 742 F. 2d 913, 914, n. 2 (CA6 1984). 



REGENTS OF UNIVERSITY OF MICHIGAN v. EWING 221 
214 Opinion of the Court 

Court of Appeals agreed with the District Court that Ewing's 
implied contract right to continued enrollment free from arbi- 
trary interference qualified as a property interest protected 
by the Due Process Clause, but it concluded that the Uni- 
versity had arbitrarily deprived him of that property in viola- 
tion of the Fourteenth Amendment because (1) "Ewing was a 
'qualified' student, as the University defined that term, at 
the time he sat for NBME Part I"; (2) "it was the consistent 
practice of the University of Michigan to allow a qualified 
medical student who initially failed the NBME Part I an 
opportunity for a retest"; and (3) "Ewing was the only Uni- 
versity of Michigan medical student who initially failed the 
NBME Part I between 1975 and 1982, and was not allowed an 
opportunity for a retest." Ewing v. Board of Regents, 742 
F. 2d 913, 916 (CA6 1984). The Court of Appeals therefore 
directed the University to allow Ewing to retake the NBME 
Part I, and if he should pass, to reinstate him in the Inteflex 
program. 

We granted the University's petition for certiorari to con- 
sider whether the Court of Appeals had misapplied the doc- 
trine of "substantive due process." 6 470 U. S. 1083 (1985). 
We now reverse. 



6 The University's petition for certiorari also presented the question 
whether the Eleventh Amendment constituted a complete bar to the action 
because it was brought against the "Board of Regents of the University of 
Michigan," App. 13, a body corporate. Cf. Florida Dept. of Health v. 
Florida Nursing Home Assn., 450 U. S. 147 (1981) (per curiam); Ala- 
bama v. Pugh, 438 U. S. 781 (1978) (per curiam). After the petition was 
granted, however, respondent Ewing filed a motion to amend the com- 
plaint by joining the individual members of the Board of Regents as named 
defendants in their official capacities. The University did not oppose that 
motion. Tr. of Oral Arg. 12-13. 

Granting the motion merely conforms the pleadings to the "course of pro- 
ceedings" in the District Court. Cf. Kentucky v. Graham, 473 U. S. 159, 
167, n. 14 (1985); Brandon v. Holt, 469 U. S. 464, 469 (1985). The 
record reveals that the Regents frequently referred to themselves in the 
plural, as "defendants," indicating that they understood the suit to be 
against them individually, in their official capacities, rather than against 



222 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

Ill 

In Board of Curators, Univ. of Mo. v. Horowitz, 435 U. S. 
78, 91-92 (1978), we assumed, without deciding, that federal 
courts can review an academic decision of a public educational 
institution under a substantive due process standard. In 
this case Ewing contends that such review is appropriate 
because he had a constitutionally protected property interest 
in his continued enrollment in the Inteflex program. 7 But 
remembering Justice Brandeis' admonition not to " 'formulate 
a rule of constitutional law broader than is required by the 
precise facts to which it is to be applied/" Ashwander v. 
TVA, 297 U. S. 288, 347 (1936) (concurring opinion), we 
again conclude, as we did in Horowitz, that the precise facts 
disclosed by the record afford the most appropriate basis for 



the Board as a corporate entity. App. 11. Likewise, the District Court 
held that "defendants did not act in violation of Ewing's due process 
rights," 559 F. Supp., at 799, and accordingly found "in favor of the defend- 
ants," id., at 800. We consequently grant the motion, thereby allowing 
Ewing to name as defendants the individual members of the Board of Re- 
gents in their official capacities. See Patsy v. Florida Board of Regents, 
457 U. S. 496, 516, n. 19 (1982). Given our resolution of the case, we need 
not consider the question whether the relief sought by Ewing would be 
available under Eleventh Amendment principles. 

7 Ewing and the courts below reasoned as follows: In Board of Regents 
v. Roth, 408 U. S. 564, 577 (1972), this Court held that property interests 
protected by due process are "defined by existing rules or understand- 
ings that stem from an independent source such as state law." See Goss 
v. Lopez, 419 U. S. 565, 572-573 (1975). In a companion case, Perry v. 
Sindermann, 408 U. S. 593, 601-602 (1972), we held that "agreements im- 
plied from the promisor's words and conduct in the light of the surrounding 
circumstances'" could be independent sources of property interests. See 
Bishop v. Wood, 426 U. S. 341, 344 (1976) (implied contracts). According 
to an antiquated race discrimination decision of the Michigan Supreme 
Court (whose principal holding has since been overtaken by events), "when 
one is admitted to a college, there is an implied understanding that he shall 
not be arbitrarily dismissed therefrom." Booker v. Grand Rapids Medi- 
cal College, 156 Mich. 95, 99-100, 120 N. W. 589, 591 (1909). From the 
foregoing, Ewing would have us conclude that he had a protectible prop- 
erty interest in continued enrollment in the Inteflex program. 



REGENTS OF UNIVERSITY OF MICHIGAN u EWING 223 
214 Opinion of the Court 

decision. We therefore accept the University's invitation to 
"assume the existence of a constitutionally protectible prop- 
erty right in [Swing's] continued enrollment," 8 and hold that 
even if E wing's assumed property interest gave rise to a sub- 
stantive right under the Due Process Clause to continued en- 
rollment free from arbitrary state action, the facts of record 
disclose no such action. 

As a preliminary matter, it must be noted that any sub- 
stantive constitutional protection against arbitrary dismissal 
would not necessarily give Ewing a right to retake the 
NBME Part I. The constitutionally protected interest al- 
leged by Ewing in his complaint, App. 15, and found by the 
courts below, derives from Swing's implied contract right to 
continued enrollment free from arbitrary dismissal. The 
District Court did not find that Ewing had any separate right 
to retake the exam and, what is more, explicitly "reject[ed] 
the contract and promissory estoppel claims, finding no suffi- 
cient evidence to conclude that the defendants bound them- 
selves either expressly or by a course of conduct to give 
Ewing a second chance to take Part I of the NBME examina- 
tion." 559 F. Supp., at 800. The Court of Appeals did not 
overturn the District Court's determination that Ewing 
lacked a tenable contract or estoppel claim under Michigan 
law, 9 see supra, at 220, and n. 5, and we accept its reason- 



8 Tr. of Oral Arg. 3. Consistent with this suggestion, petitioner's an- 
swer to Ewing's complaint "admit[ted] that, under Michigan law, [Ewing] 
may have enjoyed a property right and interest in his continued enrollment 
in the Inteflex Program." App. 21. 

9 Although there is some ambiguity in its opinion, we understand the 
Court of Appeals to have found "clearly erroneous" the District Court's re- 
jection of Ewing's federal substantive due process claim solely because of 
the "undisputed evidence of a consistent pattern of conduct" namely, the 
"substantial and uncontroverted evidence in the trial record that at the 
time Ewing took the NBME Part I, medical students were routinely given 
a second opportunity to pass it. " 742 F. 2d, at 915. The Court of Appeals 
found no "rule" to the effect that medical students are entitled to retake 
failed examinations. Indeed, it relied on the University's "promotional 



224 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

able rendering of state law, particularly when no party has 
challenged it. 10 

The University's refusal to allow Ewing to retake the 
NBME Part I is thus not actionable in itself. It is, however, 
an important element of Swing's claim that his dismissal was 
the product of arbitrary state action, for under proper analy- 
sis the refusal may constitute evidence of arbitrariness even 

pamphlet entitled 'On Becoming a Doctor* " only to the extent that it "me- 
morialized the consistent practice of the medical school with respect to stu- 
dents who initially fail that examination." Id., at 916 (emphasis added). 
A property interest in a second examination, however, cannot be in- 
ferred from a consistent practice without some basis in state law. Yet in 
this case the Court of Appeals did not reverse the District Court's finding 
that Ewing was not even aware of the contents of the pamphlet and left 
standing its holding that the statements in this promotional tract did not 
"amoun[t] either to an unqualified promise to him or ... a contract right 
to retake the examination" under state law. 559 F. Supp., at 800. We 
recognize, of course, that "mutually explicit understandings" may operate 
to create property interests. Perry v. Sindermann, 408 U. S., at 601. 
But such understandings or tacit agreements must support "a legitimate 
claim of entitlement" under " 'an independent source such as state law 
....'" Id., at 602, n. 7 (quoting Board of Regents v. Roth, 408 U. S., 
at 577). The District Court, it bears emphasis, held that the University's 
liberal retestmg custom gave rise to no state-law entitlement to retake the 
NBME Part I. We rejected an argument similar to Ewing's in Board of 
Regents v. Roth. In that case Dr. Roth asserted a property interest in 
continued employment by virtue of the fact that "of four hundred forty-two 
non-tenured professors, four were not renewed during [a particular] aca- 
demic year." Brief for Respondent in Board of Regents v. Roth, O. T. 
1971, No. 71-162, p. 28 (footnote and citation omitted). Absent a state 
statute or university rule or "anything approaching a 'common law' of re- 
employment," however, we held that Dr. Roth had no property interest in 
the renewal of his teaching contract. Board of Regents v. Roth, 408 U. S. , 
at 578, n. 16. 

10 "In dealing with issues of state law that enter into judgments of fed- 
eral courts, we are hesitant to overrule decisions by federal courts skilled 
in the law of particular states unless their conclusions are shown to be un- 
reasonable." Propperv. Clark, 337 U. S. 472, 486-487 (1949). Accord, 
Hanng v. Prosise, 462 U. S. 306, 314, n. 8 (1983); Leroy v. Great Western 
United Corp., 443 U. S. 173, 181, n. 11 (1979); Butner v. United States, 
440 U. S. 48, 58 (1979); Bishop v. Wood, 426 U. S., at 345-347. 



REGENTS OF UNIVERSITY OF MICHIGAN v. EWING 225 
214 Opinion of the Court 

if it is not the actual legal wrong alleged. The question, 
then, is whether the record compels the conclusion that the 
University acted arbitrarily in dropping Ewing from the 
Inteflex program without permitting a reexamination. 

It is important to remember that this is not a case in which 
the procedures used by the University were unfair in any 
respect; quite the contrary is true. Nor can the Regents 
be accused of concealing nonacademic or constitutionally im- 
permissible reasons for expelling Ewing; the District Court 
found that the Regents acted in good faith. 

Ewing's claim, therefore, must be that the University mis- 
judged his fitness to remain a student in the Inteflex pro- 
gram. The record unmistakably demonstrates, however, 
that the faculty's decision was made conscientiously and with 
careful deliberation, based on an evaluation of the entirety of 
Ewing's academic career. When judges are asked to review 
the substance of a genuinely academic decision, such as this 
one, they should show great respect for the faculty's profes- 
sional judgment. 11 Plainly, they may not override it unless 
it is such a substantial departure from accepted academic 
norms as to demonstrate that the person or committee re- 
sponsible did not actually exercise professional judgment. 
Cf. Youngberg v. Romeo, 457 U. S. 307, 323 (1982). 

Considerations of profound importance counsel restrained 
judicial review of the substance of academic decisions. As 
JUSTICE WHITE has explained: 

"Although the Court regularly proceeds on the as- 
sumption that the Due Process Clause has more than a 
procedural dimension, we must always bear in mind that 
the substantive content of the Clause is suggested nei- 
ther by its language nor by preconstitutional history; 

11 "University faculties must have the widest range of discretion in mak- 
ing judgments as to the academic performance of students and their enti- 
tlement to promotion or graduation." Board of Curators, Umv of Mo. v. 
Horowitz, 435 U. S. 78, 96, n. 6 (1978) (POWELL, J., concurring). See id , 
at 90-92 (opinion of the Court). 



226 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

that content is nothing more than the accumulated prod- 
uct of judicial interpretation of the Fifth and Fourteenth 
Amendments. This is ... only to underline Mr. Justice 
Black's constant reminder to his colleagues that the 
Court has no license to invalidate legislation which it 
thinks merely arbitrary or unreasonable." Moore v. 
East Cleveland, 431 U. S. 494, 543-544 (1977) (WHITE, 
J., dissenting). 

See id., at 502 (opinion of POWELL, J.). Added to our con- 
cern for lack of standards is a reluctance to trench on the pre- 
rogatives of state and local educational institutions and our 
responsibility to safeguard their academic freedom, "a special 
concern of the First Amendment." Keyishian v. Board of 
Regents, 385 U. S. 589, 603 (1967). 12 If a "federal court is 
not the appropriate forum in which to review the multitude of 
personnel decisions that are made daily by public agencies," 
Bishop v. Wood, 426 U. S. 341, 349 (1976), far less is it suited 
to evaluate the substance of the multitude of academic deci- 
sions that are made daily by faculty members of public educa- 
tional institutions decisions that require "an expert evalua- 
tion of cumulative information and [are] not readily adapted 
to the procedural tools of judicial or administrative decision- 
making." Board of Curators, Univ. of Mo. v. Horowitz, 435 
U. S., at 89-90. 



12 Academic freedom thrives not only on the independent and uninhibited 
exchange of ideas among teachers and students, see Keyishian v. Board of 
Regents, 385 U. S., at 603; Sweezy v. New Hampshire, 354 U. S. 234, 250 
(1957) (opinion of Warren, C. J.), but also, and somewhat inconsistently, 
on autonomous decisionmaking by the academy itself, see University of 
California Regents v. Bakke, 438 U. S. 265, 312 (1978) (opinion of POW- 
ELL, J.); Sweezy v. New Hampshire, 354 U. S., at 263 (Frankfurter, J., 
concurring in result). Discretion to determine, on academic grounds, who 
may be admitted to study, has been described as one of "the four essential 
freedoms" of a university. University of California Regents v. Bakke, 
438 U. S., at 312 (opinion of POWELL, J.) (quoting Sweezy v. New Hamp- 
shire, supra, at 263 (Frankfurter, J. , concurring in result)) (internal quota- 
tions omitted). 



REGENTS OF UNIVERSITY OF MICHIGAN v. EWING 227 
214 Opinion of the Court 

This narrow avenue for judicial review precludes any con- 
clusion that the decision to dismiss Ewing from the Inteflex 
program was such a substantial departure from accepted aca- 
demic norms as to demonstrate that the faculty did not 
exercise professional judgment. Certainly his expulsion 
cannot be considered aberrant when viewed in isolation. 
The District Court found as a fact that the Regents "had good 
reason to dismiss Ewing from the program." 559 F. Supp., 
at 800. Before failing the NBME Part I, Ewing accumu- 
lated an unenviable academic record characterized by low 
grades, seven incompletes, and several terms during which 
he was on an irregular or reduced course load. Swing's 
failure of his medical boards, in the words of one of his 
professors, "merely culminate[d] a series of deficiencies. . . . 
In many ways, it's the straw that broke the camel's back." 
App. 79. Accord, id., at 7, 54-55, 72-73. 13 Moreover, 
the fact that Ewing was "qualified" in the sense that he was 
eligible to take the examination the first time does not 
weaken this conclusion, for after Ewing took the NBME Part 
I it was entirely reasonable for the faculty to reexamine 
his entire record in the light of the unfortunate results of 
that examination. Admittedly, it may well have been un- 
wise to deny Ewing a second chance. Permission to retake 
the test might have saved the University the expense of 
this litigation and conceivably might have demonstrated that 
the members of the Promotion and Review Board misjudged 
Ewing's fitness for the medical profession. But it never- 
theless remains true that his dismissal from the Inteflex 
program rested on an academic judgment that is not beyond 

13 Even viewing the case from E wing's perspective, we cannot say that 
the explanations and extenuating circumstances he offered were so compel- 
ling that their rejection can fairly be described as irrational. For example, 
the University might well have concluded that Ewing's sensitivity to diffi- 
culties in his personal life suggested an inability to handle the stress inher- 
ent in a career in medicine. The inordinate amount of time Ewing devoted 
to his extracurricular essay writing may reasonably have revealed to the 
University a lack of judgment and an inability to set priorities. 



228 OCTOBER TERM, 1985 

POWELL, J., concurring 474 U. S. 

the pale of reasoned academic decisionmaking when viewed 
against the background of his entire career at the University 
of Michigan, including his singularly low score on the NBME 
Part I examination. 14 

The judgment of the Court of Appeals is reversed, and 
the case is remanded for proceedings consistent with this 
opinion. 

It is so ordered. 

JUSTICE POWELL, concurring. 

Although I join the Court's opinion holding that respondent 
presents no violation of the substantive due process right 
that he asserts, I think it unnecessary to assume the exist- 
ence of such a right on the facts of this case. Respondent 
alleges that he had a property interest in his continued enroll- 

14 Nor does the University's termination of Ewing substantially deviate 
from accepted academic norms when compared with its treatment of other 
students. To be sure, the University routinely gave others an opportu- 
nity to retake the NBME Part I. But despite tables recording that some 
students with more incompletes or low grades were permitted to retake 
the examination after failing it the first time, App. 105-111, and charts in- 
dicating that these students lacked the outside research and honor grade in 
clinical work that Ewing received, id. , at 119-120, we are not in a position 
to say that these students were "similarly situated" with Ewing. The Pro- 
motion and Review Board presumably considered not only the raw statisti- 
cal data but also the nature and seriousness of the individual deficiencies 
and their concentration in particular disciplines in E wing's case, the hard 
sciences. The Board was able to take into account the numerous incom- 
pletes and makeup examinations Ewing required to secure even marginally 
passing grades, and it could view them in connection with his reduced 
course loads. Finally, it was uniquely positioned to observe Ewing's judg- 
ment, self-discipline, and ability to handle stress, and was thus especially 
well situated to make the necessarily subjective judgment of Ewing's pros- 
pects for success in the medical profession. The insusceptibility of promo- 
tion decisions such as this one to rigorous judicial review is borne out by 
the fact that 19 other Inteflex students, some with records that a judge 
might find "better" than Ewing's, were dismissed by the faculty without 
even being allowed to take the NBME Part I a first time. Id. , at 165-166. 
Cf. id., at 66 (nine Inteflex students terminated after suffering one defi- 
ciency and failing one course after warning). 



REGENTS OF UNIVERSITY OF MICHIGAN v. EWING 229 
214 POWELL, J., concurring 

ment in the University's Inteflex program, and that his dis- 
missal was arbitrary and capricious. The dismissal allegedly 
violated his substantive due process rights guaranteed by the 
Fourteenth Amendment, providing the basis for his claim 
under 42 U. S. C. 1983. 

I 

As the Court correctly points out, respondent's claim to 
a property right is dubious at best. Ante, at 222, n. 7. 
Even if one assumes the existence of a property right, 
however, not every such right is entitled to the protection 
of substantive due process. While property interests are 
protected by procedural due process even though the interest 
is derived from state law rather than the Constitution, Board 
of Regents v. Roth, 408 U. S. 564, 577 (1972), substantive due 
process rights are created only by the Constitution. 

The history of substantive due process "counsels caution 
and restraint." Moore v. East Cleveland, 431 U. S. 494, 502 
(1977) (opinion of POWELL, J. , for a plurality). The deter- 
mination that a substantive due process right exists is a 
judgment that " 'certain interests require particularly careful 
scrutiny of the state needs asserted to justify their abridg- 
ment.'" Ibid., quoting Poe v. Ullman, 367 U. S. 497, 543 
(1961) (Harlan, J., dissenting). In the context of liberty in- 
terests, this Court has been careful to examine each asserted 
interest to determine whether it "merits" the protection of 
substantive due process. See, e. g., East Cleveland, supra; 
Roe v. Wade, 410 U. S. 113 (1973); Griswold v. Connecticut, 
381 U. S. 479 (1965). "Each new claim to [substantive due 
process] protection must be considered against a background 
of Constitutional purposes, as they have been rationally 
perceived and historically developed." Poe, supra, at 544 
(Harlan, J. , dissenting). 

The interest asserted by respondent an interest in contin- 
ued enrollment from which he derives a right to retake the 
NBME is essentially a state-law contract right. It bears 
little resemblance to the fundamental interests that previ- 



230 OCTOBER TERM, 1985 

POWELL, J., concurring 474 U. S. 

ously have been viewed as implicitly protected by the Con- 
stitution. It certainly is not closely tied to "respect for the 
teachings of history, solid recognition of the basic values that 
underlie our society, and wise appreciation of the great roles 
that the doctrines of federalism and separation of powers 
have played in establishing and preserving American free- 
doms," Griswold, supra, at 501 (Harlan, J., concurring in 
judgment). For these reasons, briefly summarized, I do not 
think the fact that Michigan may have labeled this interest 
"property" entitles it to join those other, far more important 
interests that have heretofore been accorded the protection 
of substantive due process. Cf. Harrah Independent School 
District v. Martin, 440 U. S. 194 (1979). 

II 

I agree fully with the Court's emphasis on the respect and 
deference that courts should accord academic decisions made 
by the appropriate university authorities. In view of 
Ewing's academic record that the Court charitably character- 
izes as "unfortunate," this is a case that never should have 
been litigated. After a 4-day trial in a District Court, the 
case was reviewed by the Court of Appeals for the Sixth 
Circuit, and now is the subject of a decision of the United 
States Supreme Court. Judicial review of academic deci- 
sions, including those with respect to the admission or 
dismissal of students, is rarely appropriate, particularly 
where orderly administrative procedures are followed as in 
this case.* 



*See Board of Curators, Univ. of Mo. v. Horowitz, 435 U. S. 78, 96, 
n. 6 (1978) (opinion of POWELL, J.), cited ante, at 225, n. 11. See also 
University of California Regents v. Bakke, 438 U. S. 265, 312 (1978) (opin- 
ion of POWELL, J.) ("Academic freedom, though not a specifically enu- 
merated constitutional right, long has been viewed as a special concern 
of the First Amendment"); Keyishian v. Board of Regents 385 U S 589, 
603 (1967). 



UNITED STATES u ROJAS-CONTRERAS 231 

Syllabus 

UNITED STATES v. ROJAS-CONTRERAS 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 
THE NINTH CIRCUIT 

No. 84-1023. Argued October 9, 1985 Decided December 16, 1985 

Respondent was indicted by a federal grand jury on February 18, 1983, for 
felony illegal entry into the United States and reentry by a deported 
alien, he having been previously convicted for illegal entry "on or about 
December 17, 1981." Appearing through counsel on February 18, 1983, 
respondent was arraigned, and the trial was set for April 19, 1983. 
When it was noticed that the date of the previous conviction was actually 
December 7, 1981, the grand jury, on April 15, 1983, returned a super- 
seding indictment identical to the original except that it corrected the 
date of the previous conviction. Respondent then moved for a 30-day 
continuance of the trial, contending that 18 U. S. C. 3161(c)(2) which 
provides that a trial shall not commence less than 30 days "from the date 
on which the defendant first appears through counsel" required a new 
30-day trial preparation period following the return of the superseding 
indictment. The District Court denied the motion, and respondent was 
convicted. The Court of Appeals reversed, holding that respondent was 
entitled to the new 30-day trial preparation period. 

Held: The Speedy Trial Act, of which 3161(c)(2) is a part, does not re- 
quire that the 30-day preparation period be restarted upon the filing of a 
superseding indictment. Pp. 234-237. 

(a) That this was Congress' intention is evident from the unambiguous 
language of 3161(c)(2) that clearly fixes the beginning point for the trial 
preparation period as the first appearance through counsel, and does not 
refer to the date of the indictment, much less the date of any superseding 
indictment. This conclusion is further supported by the language of 
3161(c)(l), which establishes the outside time limit within which a trial 
must commence and explicitly refers to the date of indictment as one of 
the relevant dates for determining that time limit. Pp. 234-235. 

(b) The requirements of 3161(c)(2) were met here, where the time 
between the date of respondent's first appearance through counsel and 
the date of the trial afforded a trial preparation period twice as long as 
the minimum required by 3161(c)(2). P. 236. 

(c) Respondent was clearly not prejudiced by the return of the super- 
seding indictment, which did nothing except correct the date of the pre- 
vious conviction. Pp. 236-237. 

730 F. 2d 771, reversed. 



232 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

BURGER, C. J., delivered the opinion of the Court, in which WHITE, 
MARSHALL, POWELL, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined. 
BLACKMUN, J., filed an opinion concurring in the judgment, in which 
BRENNAN, J., joined, post, p. 237. 

Patty Merkamp Stemler argued the cause for the United 
States. With her on the briefs were former Solicitor Gen- 
eral Lee, Acting Solicitor General Fried, Assistant Attorney 
General Trott, Deputy Solicitor General Frey, and Joshua I. 
Schwartz. 

Judy Clarke, by appointment of the Court, 470 U. S. 1048, 
argued the cause and filed a brief for respondent. 

CHIEF JUSTICE BURGER delivered the opinion of the 
Court. 

We granted certiorari to resolve a conflict in the Circuits l 
as to whether (a) the Speedy Trial Act of 1974, 18 U. S. C. 
3161 et seq., as amended, prohibits commencement of a trial 
less than 30 days after arraignment on a superseding indict- 
ment; and (b) assuming a violation of the Speedy Trial Act in 
this case, was that error harmless? 

I 

On December 7, 1981, respondent, who is not a citizen 
of the United States, was convicted of illegal entry into 
this country and was sentenced to one year's imprisonment. 
After serving his sentence, respondent returned to Mexico. 

Again, on February 13, 1983, he entered the United States 
illegally and was apprehended by United States Border 

1 Compare United States v. Guzman, 754 F. 2d 482 (CA2 1985), cert, 
pending, No. 84-1604; United States v. Rush, 738 F. 2d 497 (CA1 1984), 
cert, denied, 470 U. S. 1004 (1985); United States v. Williford, No. 83- 
1376 (CA5, Feb. 27, 1984) (unpublished opinion), cert, denied, 469 U. S. 
893 (1984); United States v. Horton, 676 F. 2d 1165 (CA7 1982), cert, 
denied, 459 U. S. 1201 (1983); and United States v. Todisco, 667 F. 2d 
255 (CA2 1981), cert, denied, 455 U. S. 906 (1982), with United States 
v. Rojas-Contreras, No. 83-5089 (CA9, Mar. 2, 1984) (case below; unpub- 
lished opinion). See also United States v. Feldman, 761 F. 2d 380 (CA7 
1985). 



UNITED STATES u ROJAS-CONTRERAS 233 

231 Opinion of the Court 

Patrol agents. On February 18, 1983, a federal grand jury 
sitting in the Southern District of California returned a 
two-count indictment charging respondent with felony illegal 
entry under 8 U. S. C. 1325 and with reentry by a deported 
alien under 8 U. S. C. 1326. The indictment stated that 
the judgment of conviction for the prior illegal entry, which 
formed the predicate for the enhancement of the 1325 of- 
fense to a felony, was "rendered on or about December 17, 
1981." The date of the previous conviction was actually 
December 7, 1981. On February 18, 1983, respondent, ap- 
pearing through counsel, was arraigned on the indictment. 
Trial was set for April 19, 1983. 

On March 21, 1983, the Government informed respondent 
of the correct date of the previous conviction, and on April 
15, 1983, the grand jury returned a superseding indictment 
which was identical with the original indictment in all re- 
spects except that it stated that the date of the previous con- 
viction was "on or about December 7, 1981. " 2 Respondent 
was arraigned on the superseding indictment on April 18, 
1983. 

Later that day at a pretrial conference, respondent's coun- 
sel moved for a 30-day continuance of the trial scheduled to 
begin the next day contending that the Speedy Trial Act, as 
construed by the Court of Appeals for the Ninth Circuit in 
United States v. Arkus, 675 F. 2d 245 (1982), required that a 
new 30-day trial preparation period be granted following the 
return of a superseding indictment. 3 The District Court 
denied respondent's motion for a 30-day continuance, citing 
the Seventh Circuit's decision in United States v. Horton, 676 



2 The record does not disclose why the indictment was not corrected by 
a motion for amendment in the District Court. 

3 Respondent's counsel also argued that he needed the additional time to 
consult a fingerprint expert and to review respondent's immigration file. 
However, the ultimate fact to which such evidence related, i e , that 
respondent and the person arrested in 1981 were one and the same, was 
ultimately stipulated to by respondent. 



234 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

F. 2d 1165 (1982), and distinguishing Arkus. Respondent 
was convicted of felony illegal entry into the United States. 

The Court of Appeals reversed, holding that under its deci- 
sion in United States v. Harris, 724 F. 2d 1452 (CA9 1984), 
which in turn relied on its decision in Arkus, respondent was 
entitled to a new 30-day trial preparation period following 
his arraignment on the superseding indictment. Citing its 
decision in United States v. Daly, 716 F. 2d 1499 (CA9 1983), 
the Court of Appeals held that reversal of respondent's con- 
viction was required to remedy the Speedy Trial Act viola- 
tion because "any pretrial preparation period shorter than 
thirty days is inadequate per se. No showing of prejudice is 
required." 

We granted certiorari, 469 U. S. 1207 (1985). We 
reverse. 

II 

Our starting point, of course, is the language of the 
statute. The Speedy Trial Act of 1974, as amended in 1979, 
18 U. S. C. 3161 et seq., establishes inside and outside 
time limits for commencing trial in criminal cases. Section 
3161(c)(2), the provision at issue in this case, provides: 

"Unless the defendant consents in writing to the con- 
trary, the trial shall not commence less than thirty days 
from the date on which the defendant first appears 
through counsel or expressly waives counsel and elects 
to proceed pro se" (emphasis added). 

The statute clearly fixes the beginning point for the trial 
preparation period as the first appearance through counsel. 
It does not refer to the date of the indictment, much less 
to the date of any superseding indictment. Given this unam- 
biguous language, we have no choice but to conclude that 
Congress did not intend that the 30-day trial preparation 
period begin to run from the date of filing of a superseding 
indictment. 



UNITED STATES u ROJAS-CONTRERAS 235 

231 Opinion of the Court 

That conclusion finds additional support in the language of 
3161(c)(l). That section establishes the outside time limit 
within which trial must commence under the Act and explic- 
itly refers to the date of the indictment as one of the relevant 
dates for determining that time limit: 

"[T]he trial of a defendant charged in an information or 
indictment with the commission of an offense shall com- 
mence within seventy days from the filing date (and 
making public) of the information or indictment, or 
from the date the defendant has appeared before a judi- 
cial officer of the court in which such charge is pending, 
whichever date last occurs" (emphasis added). 

It is clear that Congress knew how to provide for the com- 
putation of time periods under the Act relative to the date of 
an indictment. Had Congress intended that the 30-day trial 
preparation period of 3161(c)(2) commence or recommence 
on such a date, it would have so provided. 

Because the language of 3161(c)(2) is a clear expression of 
congressional intent, we need not resort to the legislative 
history of that section. We note, however, that the legisla- 
tive history is wholly consistent with our reading of that 
section. The 30-day trial preparation period was not in- 
cluded in the original Speedy Trial Act as it was enacted in 
1975 but was incorporated into the Act with the 1979 amend- 
ments to the Act. Speedy Trial Act Amendments Act of 
1979, Pub. L. 96-43, 93 Stat. 327. The legislative history of 
the 1979 revisions suggests that the source of the 30-day trial 
preparation period was a set of Guidelines issued by the Judi- 
cial Council of the United States Court of Appeals for the 
Second Circuit. See Hearings on S. 961 and S. 1028 before 
the Senate Committee on the Judiciary, 96th Cong., 1st 
Sess., 122, 386-436 (1979). The Guidelines were issued to 
assist the trial judges sitting in the Second Circuit in inter- 
preting the provisions of the Act. Id., at 386. These Guide- 
lines provided that "whenever the time between arraignment 
and the scheduled trial date does not exceed thirty (30) days, 



236 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

the Court shall . . . view a request for an adjournment of trial 
to a date beyond thirty (30) days but within the sixty (60) day 
limit, liberally . . . ." Id., at 392-393. The Guidelines also 
stated that, in the situation where a superseding indictment 
adds new charges, trial of the original charges must begin 
"within the time limit for commencement of trial on the origi- 
nal indictment or information." Id., at 417. Taking these 
two statements from the Guidelines together, it appears that, 
although the Second Circuit was clearly concerned that a de- 
fendant be given a pretrial preparation period of at least 30 
days, the filing of a superseding indictment was not enough 
by itself to require the restarting of that 30-day period. 

Applying 3161(c)(2) to the facts of this case, we conclude 
that the requirements of that section were met here. The 
record reflects that respondent's first appearance through 
counsel occurred on February 18, 1983. Trial was not com- 
menced until April 19, 1983. Respondent was, therefore, 
afforded a pretrial preparation period twice as long as the 
mininaum required by 3161(c)(2). 

In concluding as we do that the Act does not require that 
the 30-day trial preparation period be restarted upon the fil- 
ing of a superseding indictment, we do not hold that a defend- 
ant must always be compelled to go to trial less than 30 days 
after the filing of such an indictment. The Act itself places 
broad discretion in the District Court to grant a continu- 
ance when necessary to allow further preparation. Section 
3161(h)(8) authorizes the trial judge to grant a continuance if 
"the ends of justice served by taking such action outweigh 
the best interest of the public and the defendant in a speedy 
trial/' The authority of the District Court to grant an "ends 
of justice" continuance should take care of any case in which 
the Government seeks a superseding indictment which oper- 
ates to prejudice a defendant. 

Here respondent was clearly not prejudiced by the return 
of the superseding indictment. The initial indictment re- 
cited that the judgment on the prior illegal entry had been 



UNITED STATES v. ROJAS-CONTRERAS 237 

231 BLACKMUN, J., concurring in judgment 

rendered "on or about December 17, 1981." The supersed- 
ing indictment did nothing except to correct that phrase to 
read "on or about December 7, 1981." Even if we were pre- 
pared to hold that December 7 is not "on or about" December 
17, we would nevertheless be compelled to conclude that 
respondent was not prejudiced by the change. 

Since the Act did not prohibit the commencement of the 
trial less than 30 days after arraignment on the superseding 
indictment, we need not address the question whether the 
District Court's refusal to grant the continuance requested 
by respondent was harmless error. 

The Court of Appeals' construction of the Act ignored its 
plain language and would frustrate its basic purpose which is 
manifest in its very title: The speedy trial of criminal cases. 
That construction was error, and we reverse. 

Reversed. 

JUSTICE BLACKMUN, with whom JUSTICE BRENNAN joins, 
concurring in the judgment. 

I concur in the result the Court reaches and therefore in its 
judgment. The Court today holds that the Speedy Trial Act 
does not mandate a new 30-day defense-preparation period 
following return of a superseding indictment. I agree with 
the Court that that holding is strongly guided by the express 
purpose of the Speedy Trial Act. But because I find neither 
the language of the Act particularly clear nor its legislative 
history at all helpful, I refrain from joining the opinion's stat- 
utory analysis. 

The term "superseding indictment" refers to a second in- 
dictment issued in the absence of a dismissal of the first. 
The Act nowhere refers to a superseding indictment, and 
seems to assume that dismissal of the first indictment will 
precede issuance of the second. See 18 U. S. C. 3161(d)(l) 
and 3161(h)(6). Section 3161(c)(2), which establishes the 
30-day defense-preparation period "from the date on which 
the defendant first appears through counsel," therefore can 
provide only the starting point of the inquiry. The question 



238 OCTOBER TERM, 1985 

BLACKMUN, J. , concurring in judgment 474 U. S. 

before the Court is whether that language may be inter- 
preted to refer to the defendant's appearance on the indict- 
ment upon which he ultimately goes to trial, or whether one 
must read that language to refer to the defendant's appear- 
ance on the first indictment. Despite the fact that the legis- 
lative history of the Act is of no assistance, 1 we are guided in 
our task by the purpose and the structure of the Act. 

The Speedy Trial Act "gave effect to a Federal defendant's 
right to speedy trial under the Sixth Amendment and ac- 
knowledged the danger to society represented by accused 
persons on bail for prolonged periods of time." H. R. Rep. 
No. 96-390, p. 3 (1979). To accomplish these goals, the Act 
provides strict time limits for each stage of the criminal trial 
process. The Act, as amended, requires that a defendant be 
brought to trial within 70 days of his first appearance through 



1 As the Court observes, ante, at 235, the notion that the Act might op- 
erate to deny defendants the necessary time adequately to prepare for trial 
had its genesis in the Guidelines issued by the Judicial Council of the 
United States Court of Appeals for the Second Circuit (Guidelines). See 
Hearings on S. 961 and S. 1028 before the Senate Committee on the Judi- 
ciary, 96th Cong., 1st Sess., 122, 386-436 (1979) (Hearings). However, in 
enacting the 1979 amendments, Congress did not adopt the Second Cir- 
cuit's Guidelines; in fact, Congress rejected the Guidelines' discretionary 
grant of a defense-preparation period, opting instead for a mandatory 
30-day period. In light of this fundamental difference between the Act 
and the Guidelines, the latter's details can provide little help for today's 
decision. In any event, the Guidelines do not answer the question before 
us. Under them, where a superseding indictment contains charges not in- 
cluded in the original indictment, trial of the original charges must begin 
"within the time limit for commencement of trial on the original indictment 
or information." Hearings, at 417. This language plainly instructs that 
as to the original charges contained in a superseding indictment, no new 
30-day and 70-day periods begin to run. As to any new charges, however, 
the Guidelines at least suggest that the clock for the 70-day time to trial 
must be restarted. Ibid. It is not obvious under the Guidelines whether 
a modified charge of the sort before us today would be treated the same as 
the original charge, and the Guidelines are silent on the question whether 
to accord the defendant the opportunity to seek an additional discretionary 
preparation period where the 70-day period ran anew. 



UNITED STATES v. ROJAS-CONTRERAS 239 

231 BLACKMUN, J., concurring in judgment 

counsel. See 18 U. S. C. 3161(c)(l). For 30 of those days, 
the Government cannot proceed to trial, in order that the 
defendant may prepare his case. 

Because the criminal process does not always proceed in a 
linear fashion, the Act addresses second indictments that 
occur, unlike in this case, following dismissal of the first in- 
dictment. When an indictment is dismissed on motion of the 
defendant, and the defendant is thereafter reindicted, both 
the 30-day and 70-day periods run anew. See 18 U. S. C. 
3161(d)(l). In contrast, however, when an indictment is 
dismissed on motion of the Government, and the defendant is 
thereafter reindicted, both the 30-day and 70-day periods 
continue to run from the first indictment, with the proviso 
that the period during which no indictment is outstanding 
is excluded from the 70-day calculation. See 18 U. S. C. 
3161(h)(6). The difference in treatment protects against 
governmental circumvention of the speedy-trial guarantee. 

Neither of these reindictment provisions applies here, be- 
cause the second indictment was issued in the absence of dis- 
missal of the first. The provisions demonstrate, however, 
that the 30-day and 70-day periods were intended to operate 
in tandem; where one runs anew, so should the other. In 
this case, therefore, the structure of the statute suggests 
that either both periods should continue to run upon issuance 
of a superseding indictment, or both should start anew. To 
permit a new 30-day period, but not a new 70-day period, 
could lead to a result surely not intended by Congress, 
namely, that there is no day on which a defendant could be 
brought to trial. To avoid that possibility, respondent ar- 
gues that the second 30-day period could simply be excluded 
from the continuing 70-day period in which a defendant must 
be brought to trial. But the Act's comprehensive list of 
express exclusions counsels one to read Congress' failure to 
exclude certain periods of time as a considered judgment 
that those periods are to be included in the speedy-trial 



240 OCTOBER TERM, 1985 

BLACKMUN, J., concurring in judgment 474 U. S. 

calculation, or as a recognition that the need for such an 
exclusion will not arise under the statutory scheme. 

In light of Congress' intent to bring defendants quickly to 
trial, it would make little sense to restart both the 30-day and 
70-day periods whenever there is a superseding indictment. 
Frequently, a superseding indictment is used to drop charges 
or parties or, as here, to make a minor correction, leaving the 
charges and the evidence necessary to defend against them 
unaffected. These kinds of changes should not create a need 
for further preparation time; indeed, in some instances, 
superseding indictments may lessen the defense burden. 
Where a superseding indictment of this type is issued, the 
Court's holding today permits the defendant to be brought to 
trial without unnecessary delay. 

Like the Court, I fully recognize that a superseding indict- 
ment may add to a defendant's burden in preparing for trial. 
In the event of additional charges, or of material changes, 
a defendant well may need additional preparation time. 
Under the Act, a defendant then may seek an "ends of jus- 
tice" continuance, to be granted in the discretion of the trial 
court. 2 See 18 U. S. C. 3161(h)(8)(A). This continuance 
is available whether the need for additional time is occasioned 
by a superseding indictment or otherwise. Indeed, the 1979 
amendments to the Speedy Trial Act not only mandated the 
30-day defense-preparation period, but also provided that 
one basis for granting a continuance is if "the failure to grant 
such a continuance . . . would deny counsel for the defendant 
. . . the reasonable time necessary for effective preparation." 
18 U. S. C. 3161(h)(8)(B)(iv). The constitutional right to 
assistance of counsel is rendered meaningless if a defendant 
is forced to trial in the absence of adequate time to prepare. 
To avoid prejudicing a defendant, a continuance should be 

2 Because time granted under an "ends of justice" continuance is ex- 
pressly excluded from the 70-day period, any preparation time granted 
would not jeopardize the Government's ability to bring the defendant to 
trial. See 18 U. S. C. 3161(h)(8)(A). 



UNITED STATES u ROJAS-CONTRERAS 241 

231 BLACKMUN, J., concurring in judgment 

granted where there is a meaningful possibility that a super- 
seding indictment will require an alteration or adjustment in 
the planned defense. Trial courts should bear in mind that 
counsel may require time fully to analyze the impact of 
the superseding indictment, and to explore any options it 
presents or precludes. 3 

The Speedy Trial Act assures that defendants will be 
brought to trial quickly, but without undermining the Con- 
stitution's guarantee of effective assistance of counsel. Be- 
cause the Court's holding today upholds that essential prom- 
ise of the Act, I concur in the judgment. 



3 Following enactment of the 1979 amendments, the Committee on the 
Administration of the Criminal Law recommended precisely this analysis. 
The Committee advised district courts that, in the event of a superseding 
indictment, the 30-day preparation period should not run anew, but "the 
trial court should use its scheduling discretion to ensure that the defense 
has time to prepare in the circumstances of the particular case." See Judi- 
cial Conference of the United States, Committee on the Administration of 
the Criminal Law, Guidelines to the Administration of the Speedy Trial 
Act of 1974, as Amended, p. 14 (1981). 



242 OCTOBER TERM, 1985 

Syllabus 474 U. S. 

UNITED STATES v. VON NEUMANN 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 
THE NINTH CIRCUIT 

No. 84-1144. Argued November 4, 1985 Decided January 14, 1986 

Respondent purchased a car in Switzerland and had it shipped to Vancou- 
ver, Canada. After he had picked up the car in Vancouver, he drove to 
the United States border but failed to declare the car when asked by a 
United States customs officer whether he had anything to declare. Cus- 
toms then seized the car pursuant to 19 U. S. C. 1497, which provides 
that any article not declared upon entry into the United States that by 
law must be declared is subject to forfeiture or to a penalty equaling the 
value of the article. Respondent, rather than waiting to challenge the 
seizure in a judicial forfeiture action that might be initiated by the Gov- 
ernment, immediately chose the other statutory option of filing a petition 
for administrative remission of the forfeiture. Two weeks later he 
posted a bond for $24,500, the car's value, and Customs released the car. 
The Customs Service did not respond to the remission petition until 36 
days after it was filed, at which time the penalty for failure to declare the 
car was reduced to $3,600, and this penalty was upheld on administrative 
review. Respondent then filed a complaint in Federal District Court, 
seeking cancellation of the penalty on the ground that he had not violated 
1497, and a declaration that the seizure and penalty were unlawful. 
The District Court disagreed and entered judgment for the Government. 
The Court of Appeals held that the 36-day delay in acting on respond- 
ent's remission petition denied him due process of law in violation of the 
Fifth Amendment. Subsequently on remand from this Court for re- 
consideration in light of United States v. $8,850, 461 U. S. 555, the Court 
of Appeals held that the four-factor balancing test of Barker v. Wingo, 
407 U. S. 514 -the length of the delay, the reason for the delay, the 
defendant's assertion of his right, and prejudice suffered by the defend- 
antapplied in $8,850 in determining whether a delay in bringing a 
forfeiture proceeding violated due process should also be applied to 
determine whether the 36-day delay in this case violated due process, 
and accordingly remanded to the District Court to determine that ques- 
tion under the above test. 

Held: On the record, the 36-day delay did not deprive respondent of prop- 
erty without due process of law. Pp. 249-251. 

(a) Respondent's right to a forfeiture proceeding meeting the Barker 
test provides the postseizure hearing required by due process to protect 
respondent's property interest in the car. The remission statute simply 



UNITED STATES v. VON NEUMANN 243 

242 Opinion of the Court 

grants the Secretary of the Treasury the discretion not to pursue a com- 
plete forfeiture despite the Government's entitlement to one. Remis- 
sion proceedings are not necessary to a forfeiture determination, and 
therefore are not constitutionally required. Thus, there is no constitu- 
tional basis for a claim that respondent's interest in the car, or in the 
money put up to secure the bond, entitled him to a speedy answer to his 
remission petition. Pp. 249-250. 

(b) Even if respondent had a property right under the remission stat- 
ute that cannot be taken away without due process that includes a 
speedy answer to the remission petition, any due process requirement 
of timely disposition was more than adequately provided for here. It 
is not shown that he suffered any prejudice from the 36-day delay. 
Pp. 250-251. 
729 F. 2d 657, reversed. 

BRENNAN, J., delivered the opinion of the Court, in which WHITE, MAR- 
SHALL, BLACKMUN, POWELL, REHNQUIST, and O'CONNOR, JJ., joined, 
and in Parts I and II of which BURGER, C. J., joined. BURGER, C. J., 
filed an opinion concurring in part, post, p. 251. STEVENS, J., filed an 
opinion concurring in the judgment, post, p. 252. 

Alan I. Horowitz argued the cause for the United States. 
With him on the brief were Acting Solicitor General Fried, 
Assistant Attorney General Trott, and Deputy Solicitor Gen- 
eral Frey. 

Charles L. Birke argued the cause and filed a brief for 
respondent. 

JUSTICE BRENNAN delivered the opinion of the Court. 

We must decide in this case whether a 36-day delay by the 
United States Customs Service in responding to a remission 
petition filed by respondent in response to the seizure of his 
car by customs agents deprived respondent of property with- 
out due process of law. 

I 

Title 19 U. S. C. 1497' provides that any article not 
declared upon entry into the United States which by law 

1 Section 497, 46 Stat. 728, 19 U. S. C. 1497, provides: 
"Any article not included in the declaration and entry as made, and, before 
examination of the baggage was begun, not mentioned in writing by such 
person, if written declaration and entry was required, or orally if written 



244 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

must be declared is subject to forfeiture or to a penalty equal- 
ing the value of the article. After seizure of an article by the 
United States Customs Service, a claimant to it has essen- 
tially two options. He may pursue an administrative rem- 
edy under 19 U. S. C. 1618 (1982 ed., Supp. Ill), 2 which 
vests in the Secretary of the Treasury the discretionary au- 
thority to mitigate or remit the penalty or forfeiture, or he 
may challenge the seizure in a judicial forfeiture action initi- 
ated by the Government. 3 19 U. S. C. 1602-1604. 4 

declaration and entry was not required, shall be subject to forfeiture and 
such person shall be liable to a penalty equal to the value of such article." 
2 Section 618, 46 Stat. 757, as amended and set forth in 19 U. S. C. 
1618 (1982 ed., Supp. Ill), provides in pertinent part: 
'Whenever any person interested in any vessel, vehicle, aircraft, merchan- 
dise, or baggage seized under the provisions of this chapter, or who has 
incurred, or is alleged to have incurred, any fine or penalty thereunder, 
files with the Secretary of the Treasury if under the customs laws . . . be- 
fore the sale of such vessel, vehicle, aircraft, merchandise, or baggage a 
petition for the remission or mitigation of such fine, penalty, or forfeiture, 
the Secretary of the Treasury ... if he finds that such fine, penalty, or 
forfeiture was incurred without willful negligence or without any intention 
on the part of the petitioner to defraud the revenue or to violate the law, or 
finds the existence of such mitigating circumstances as to justify the remis- 
sion or mitigation of such fine, penalty, or forfeiture, may remit or mitigate 
the same upon such terms and conditions as he deems reasonable and just, 
or order discontinuance of any prosecution relating thereto." 

3 The claimant may trigger the Government's initiation of forfeiture pro- 
ceedings. In United States v. $8,850, 461 U. S. 555, 569 (1983), we noted: 
"A claimant is able to trigger rapid filing of a forfeiture action if he desires 
it. First, the claimant can file an equitable action seeking an order com- 
pelling the filing of the forfeiture action or return of the seized property. 
See Slocum v. Mayberry, 2 Wheat. 1, 10 (1817) (Marshall, C. J.). Less 
formally, the claimant could simply request that the Customs Service refer 
the matter to the United States Attorney. If the claimant believes the 
initial seizure was improper, he could file a motion under Federal Rule of 
Criminal Procedure 41(e) for a return of the seized property." 

4 When the Jaguar was seized in this case, a customs officer could have 
instituted nonjudicial, summary forfeiture proceedings if the value of the 
car had been not more than $10,000. See 19 U. S. C. 1607-1609. Con- 
gress has since raised this limit to $100,000. 19 U. S. C. 1607 (1982 ed., 



UNITED STATES v. VON NEUMANN 245 

242 Opinion of the Court 

In 1974, respondent John Von Neumann shipped to Van- 
couver, Canada, a 1974 Jaguar Panther automobile he pur- 
chased in Switzerland. On January 20, 1975, he and a friend 
picked up the car in Vancouver, obtained a release from 
Canadian Customs to take possession of the vehicle and also 
obtained a form that Von Neumann was to deliver to the 
Canadian Customs station at the border. Von Neumann 
failed to deliver the form to Canadian Customs officials. He 
claimed that he inadvertently drove past the Canadian Cus- 
toms station because of poor visibility and inadequate direc- 
tions. Instead, Von Neumann and his friend arrived at the 
United States border checkpoint at Elaine, Washington, 
where they were questioned by United States Immigration 
Officer Harry Perkins, a designated customs officer. Cana- 
dian Customs officials had earlier alerted United States Cus- 
toms that Von Neumann's car would be crossing the border, 
and Perkins specifically asked Von Neumann whether he had 
anything to declare. When Von Neumann failed to declare 
the automobile, Perkins asked him into the checkpoint station 
and referred the matter to Customs Inspector Donald E. 
Morrison. Upon being asked why he had not declared the 
car, Von Neumann explained that he did not think a declara- 
tion was required. Morrison then seized the car pursuant to 
19 U. S. C. 1497. 

That same day, January 20, Von Neumann prepared a 
"Petition for Remission or Mitigation of Forfeitures and Pen- 
alties Incurred," pursuant to 19 U. S. C. 1618, explaining 
that he had not intended to violate United States Customs 
laws when he failed to declare the car. Two weeks later, on 
February 3, Von Neumann posted a bond for $24,500, the 



Supp. III). Even for a seizure of property appraised at less than $100,000, 
the claimant has a right to a judicial determination upon posting a bond to 
cover costs in the sum of $2,500 or 10% of the value of the claimed prop- 
erty, whichever is smaller, but not less than $250. 19 U. S. C. 1608 
(1982 ed., Supp. III). 



246 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

value of his car, and Customs released the vehicle pursuant 
to its authority under 19 U. S. C. 1614. On February 12, 
counsel for Von Neumann filed a supplement to the original 
remission petition. On February 2536 days after the peti- 
tion was filed the Seattle District Director of the Customs 
Service, pursuant to delegation of authority from the Secre- 
tary of the Treasury, 5 acted on Von Neumann's remission 
petition, and informed Von Neumann that the penalty for 
failure to declare the car was being reduced to $3,600. On 
administrative review of this determination, the Regional 
Commissioner of Customs in San Francisco, on April 14, 
1975, upheld the $3,600 penalty. 

Having exhausted his administrative remedies, Von Neu- 
mann filed a complaint in the United States District Court for 
the Central District of California. He sought cancellation of 
the $3,600 penalty on the ground that he had not violated 
1497. He also requested an injunction prohibiting Customs 
from placing his name on a computer list of violators, and a 
declaration that this seizure and penalty were unlawful. The 
District Court found that Von Neumann had violated 19 
U. S. C. 1497, and that seizure of the car therefore was 
proper. The court also upheld the validity of the remission 
and mitigation procedures. Accordingly, it entered judg- 
ment for the Government. 6 Von Neumann appealed this de- 



5 The Secretary of the Treasury is authorized by statute to act on peti- 
tions for remission. 19 U. S. C. 1618. This authority has been dele- 
gated to District Directors of the Customs Service in some cases where the 
total value of the merchandise forfeited does not exceed $100,000, 19 CFR 
171.21 (1985). At the time of this seizure, the limit was $25,000. See 19 
CFR 171.21 (1974), 

6 The Government filed a contingent counterclaim seeking recovery of 
the full $24,500 in accordance with 19 U. S. C. 1497, in the event the 
District Court found the mitigation invalid. Because the District Court 
entered judgment in favor of the Government on the merits of Von 
Neumann's complaint, it denied the contingent counterclaim. In its 
answer in the District Court the Government had also contended that the 
remission and mitigation sought and received by respondent was a settle- 



UNITED STATES v. VON NEUMANN 247 

242 Opinion of the Court 

cision, challenging both the procedures followed by Customs 
in imposing the penalty and also the penalty itself. 

The Court of Appeals for the Ninth Circuit agreed with 
the District Court that Von Neumann had violated 1497. 
660 F. 2d 1319, 1323 (1981). The court, however, also con- 
sidered and sustained Von Neumann's claim that the 36-day 
delay in acting on his remission petition denied Von Neu- 
mann due process of law in violation of the Fifth Amendment. 
The court reasoned that speed in the handling of the remis- 
sion petition, particularly where the seizure is of an auto- 
mobile, is constitutionally required that strict guidelines in 
responding to remission petitions are necessary "to ensure 
the due process rights of administrative claimants," id., at 
1326-1327, and concluded that Customs must "act on a peti- 
tion for remission or mitigation within 24 hours of receipt," 
id., at 1327. In addition, the court ruled, a claimant has a 
right to a personal appearance to present his or her claim. 
Ibid. 

The Government petitioned for certiorari. We granted 
the petition, vacated, and remanded for reconsideration in 
light of United States v. $8,850, 461 U. S. 555 (1983). 462 
U. S. 1101 (1983). In $8,850, however, the issue presented 
did not involve the remission procedure; rather the question 
was whether the Government's 18-month delay in bringing a 
forfeiture proceeding violated the claimant's right to due 
process of law. The Court held that due process requires a 
postseizure determination within a reasonable time of the sei- 
zure. We concluded that the four-factor balancing test of 
Barker v. Wingo, 407 U. S. 514 (1972), provides the relevant 
framework for determining whether a delay was reasonable. 
The Barker test involves a weighing of four factors: the 
length of any delay, the reason for the delay, the defendant's 
assertion of his right, and prejudice suffered by the defend- 
ant. Applying this test to the 18-month delay before it, the 

rnent, accord, and satisfaction binding on Von Neumann. The District 
Court did not reach this issue; nor do we 



248 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

Court in $8,850 found no unreasonable delay, in part because 
a substantial portion of the delay in question was attributable 
to pending administrative and criminal proceedings. 

On remand in this case, the Court of Appeals recognized 
that $8,850 "presented a somewhat different issue from that 
arising in the instant case," 729 F. 2d 657, 659 (1984), because 
$8,850 dealt with forfeiture rather than the remission proce- 
dure. Nevertheless, it concluded that this Court's holding in 
$8,850 "reinforces our earlier view that due process rights 
attach to the processing of the petition for remission," 729 
F. 2d, at 660, and therefore reaffirmed its holding that "due 
process requires Customs to act promptly in ruling on peti- 
tions for remission or mitigation under 19 U. S. C. 1618." 
Ibid. The court recognized that its earlier attempt to set 
specific time limits for the processing of remission petitions 
was "ill-advised," ibid., and held instead that the Barker fac- 
tors should also be applied to determine whether Customs 
has violated due process in delaying a response to a remission 
petition. The court accordingly remanded the case to the 
District Court to consider whether the 36-day delay violated 
due process. In addition, however, the court made clear its 
view that the circumstances of this case support a finding of a 
due process violation. Thus, the court noted that the propri- 
ety of the length of the delay may turn on the nature of the 
item that has been seized, and reemphasized the point made 
in its earlier opinion that "special hardships [are] imposed on 
persons deprived of the use of their automobiles . . . ." 729 
F. 2d, at 661. With respect to the reason for the delay, the 
Court of Appeals observed that the "record here provides no 
obvious reason for the Government's one-month delay in 
processing von Neumann's petition, although we note that 
Customs processes a great number of petitions each year." 
Ibid. In addition, the court pointed to the filing of the remis- 
sion petition itself as the necessary assertion of the right 
to a speedy determination under Barker. Finally, the court 



UNITED STATES v. VON NEUMANN 249 

242 Opinion of the Court 

noted that prejudice could be established by the inconve- 
nience of being without a vehicle for any length of time. 

Arguing that due process considerations do not govern the 
Secretary's disposition of remission petitions, the Govern- 
ment petitioned for certiorari. We granted the Govern- 
ment's petition. 471 U. S. 1064 (1984). We now reverse. 

II 

We understand respondent to argue that his property in- 
terest in his car gives him a constitutional right to a speedy 
disposition of his remission petition without awaiting a for- 
feiture proceeding. We disagree. Implicit in this Court's 
discussion of timeliness in $8,850 was the view that the for- 
feiture proceeding, without more, provides the postseizure 
hearing required by due process to protect Von Neumann's 
property interest in the car. 7 Respondent argues, however, 
that "[t]he petition for remission procedure is just one step in 
which it is determined whether that property interest will be 
extinguished via a judicial foreclosure proceeding." Brief 
for Respondent 8-9. We think respondent misunderstands 
the remission procedure's role. It is true that, as a practical 
matter, most forfeitures are disposed of through the adminis- 
trative remission procedures, 8 but that is constitutionally 

7 In $8,850 the claimant conceded that no preseizure hearing is required 
when Customs makes a seizure at the border. Respondent does not dis- 
pute that here, and we doubt that he could. In $8,850 we noted that while 
the general rule is that "absent an 'extraordinary situation' a party cannot 
invoke the power of the state to seize a person's property without a prior 
judicial determination that the seizure is justified. . . . [D]ue process does 
not require federal customs officials to conduct a hearing before seizing 
items subject to forfeiture." 461 U. S., at 562, n. 12. We reasoned that 
such a requirement would make customs processing entirely unworkable 
and also found that because "the seizure serves important governmental 
purposes [,] a preseizure notice might frustrate the statutory purpose . . . ." 
Ibid. 

8 We noted in $8,850 that Customs processes over 50,000 noncontraband 
forfeitures per year, and that in 90% of all seizures, the claimant files a 
petition for remission or mitigation. We further noted that the Secretary 



250 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

irrelevant. We noted in One Lot Emerald Cut Stones v. 
United States, 409 U. S. 232, 234 (1972), that in the event 
an item is not declared at the border under 1497 "[t]he 
Government need only prove that the property was brought 
into the United States without the required declaration; 
the Government bears no burden with respect to intent." 
The remission statute simply grants the Secretary the dis- 
cretion not to pursue a complete forfeiture despite the Gov- 
ernment's entitlement to one. Remission proceedings sup- 
ply both the Government and the claimant a way to resolve 
a dispute informally rather than in judicial forfeiture pro- 
ceedings. But remission proceedings are not necessary to a 
forfeiture determination, and therefore are not constitution- 
ally required. Thus there is no constitutional basis for a 
claim that respondent's interest in the car, or in the money 
put up to secure the bond, entitles him to a speedy answer 
to his remission petition. 

Ill 

While his interest in the car is the only basis on which 
respondent relies in his support of the Court of Appeals' de- 
cision, the Government asks that the Court adjudge the case 
of a claimant who relies on the argument that 1618 itself 
creates a property right which cannot be taken away without 
due process that includes a speedy answer to a remission 
petition. The Government argues that the statute creates 
no such right. We need not address the hypothetical, how- 
ever. It is abundantly clear on the record in this case that, 
even if respondent had such a property right, any due proc- 
ess requirement of timely disposition .was more than ade- 
quately provided here. It is difficult, indeed impossible, to 
see what prejudice respondent suffered from the 36-day 
delay in the response. True, he was without his car for 14 
days, and then, for another 22 days, without the money he 

in turn grants at least partial relief for an estimated 75% of the petitions. 
Typically, this mitigation process terminates the dispute without the ne- 
cessity of filing a forfeiture action. 



UNITED STATES u VON NEUMANN 251 

244 BURGER, C. J., concurring- in part 

had to put up to secure a bond, and Von Neumann urges the 
importance of automobiles to citizens in this society. But we 
have already noted that his right to a forfeiture proceeding 
meeting the Barker test satisfies any due process right with 
respect to the car and the money. In fact, it is not alto- 
gether certain that the delay dated from the filing on January 
20 of the original remission petition. Respondent supple- 
mented his remission petition and was given a final decision 
just 13 days later. Moreover, respondent gives no hint as to 
how or why even a 36-day delay in the disposition of his re- 
mission petition deprived him of the process he claims was his 
due in connection with that petition. He does not argue that 
the delay prejudiced his defense against the forfeiture, see 
$8,850, 461 U. S., at 569, and with respect to preparing his 
"case" for remission, that case was made at the time of filing 
and could not have been affected by the subsequent delay. 
On the record before us, the 36-day delay cannot be said to 
deprive respondent of due process of law. 

Reversed. 

CHIEF JUSTICE BURGER, concurring in part. 

I join Parts I and II of the majority opinion, but do not 
agree with the Court's failure, in Part III of the opinion, to 
resolve an important question that is properly before the 
Court. 

Part III declines to address the question whether a claim- 
ant may assert a due process "property" interest in the result 
of a discretionary petition for reduction of a statutory pen- 
alty. This question was expressly presented by our grant of 
the Government's petition for certiorari. The two opinions 
of the Court of Appeals are sufficiently ambiguous as to leave 
unclear whether or not that court was relying on Von 
Neumann's interest in the car itself, or on some interest in 
having his penalty reduced. In its initial opinion the Court 
of Appeals held that "[t]he delay in processing [respondent's] 
petition for remission or mitigation . . . violated his due proc- 



252 OCTOBER TERM, 1985 

STEVENS, J., concurring in judgment 474 U. S. 

ess right to prompt consideration of his claim." 660 F. 2d 
1319, 1327 (CA9 1981) (emphasis added). 

Whether respondent has any due process right in his claim 
for mitigation of the statutory penalty is a question properly 
before the Court, and we have an obligation to address it. 
Resolution of this issue is not difficult. We held in Connecti- 
cut Board of Pardons v. Dumschat, 452 U. S. 458 (1981), 
that a prisoner has no liberty interest cognizable under due 
process in a claim for a discretionary grant of parole, even 
though under the state parole procedure inmates were regu- 
larly and routinely granted release. It follows directly that 
there can be no possible due process property interest in a 
discretionary grant of a reduction in a statutory penalty un- 
less we are prepared to modify Dumschat. 

I would confront and resolve this issue rather than relying 
on the Court's alternative holding that the 36-day period sat- 
isfies due process regardless of what due process "interests" 
were actually involved. 

JUSTICE STEVENS, concurring in the judgment. 

The fact that remission procedures are not constitutionally 
required, ante, at 249-250, does not shed any light on the 
question whether the Government has an obligation to proc- 
ess remission petitions with reasonable diligence. For even 
though it was not obligated to do so, Congress has enacted 
legislation authorizing the Secretary of the Treasury to 
create such a procedure. The importance of this statutory 
procedure is underlined by the fact that it is used to resolve 
almost 50,000 claims every year. Its practical significance 
is also suggested by the fact that the number of at least 
partially successful claimants in remission proceedings is tri- 
ple the number that come away emptyhanded. This record 
indicates that the remission petition is a principal mechanism 
for resolving the dispute between the Government and the 
individual that frequently results from the seizure of prop- 
erty at our borders. 



UNITED STATES u VON NEUMANN 253 

242 STEVENS, J., concurring in judgment 

When Congress authorizes a member of the Cabinet to es- 
tablish a procedure of this importance to thousands of indi- 
viduals, it surely intends that the procedure will be adminis- 
tered in a regular and fundamentally fair way. One element 
of fair procedure is a requirement of reasonable diligence in 
processing claims. Absent clear evidence to the contrary, I 
would therefore construe the statute as implicitly command- 
ing the Secretary to act diligently, and would not speculate 
about the possibility that a wholly arbitrary remission proce- 
dure would comply with the Due Process Clause of the Fifth 
Amendment. * 

Nevertheless, I agree with the Court's ultimate conclusion 
that on this record respondent has not demonstrated that 
the 36-day delay in responding to his petition was unlawful. 
I therefore concur in the judgment. 



*The Government concedes that, at least before the Customs Service 
acts on a remission petition, Congress has intended that the timeliness of 
the Government's response be fully reviewable. See Brief for United 
States 25, n. 20 ("A claimant is not powerless ... to obtain a speedy reso- 
lution of the question of his interest in the property. If delay m processing 
the administrative petition for remission or mitigation is unreasonable 
under the Administrative Procedure Act, the claimant may file suit to 
attempt to compel the agency to act. 5 U. S. C. 706(1)") 



254 OCTOBER TERM, 1985 

Syllabus 474 U. S. 

VASQUEZ, WARDEN v. HILLERY 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 
THE NINTH CIRCUIT 

No. 84-836. Argued October 15, 1985 Decided January 14, 1986 

In 1962, a California grand jury indicted respondent for murder. Before 
trial in California Superior Court, the judge refused to quash the indict- 
ment on the alleged ground that it had been issued by a grand jury from 
which blacks had been systematically excluded. Respondent was subse- 
quently convicted of first-degree murder. After unsuccessfully pursu- 
ing appeals and collateral relief in the state courts for the next 16 years, 
respondent filed a habeas corpus petition in Federal District Court, 
again raising his equal protection challenge to the grand jury that in- 
dicted htm. The District Court upheld the challenge, and the Court of 
Appeals affirmed. 
Held: 

1. Respondent's obligation to exhaust state remedies before seeking 
collateral relief in federal court was not circumvented by the fact that the 
District Court, pursuant to a valid exercise of its power to expand the 
record, directed the parties to present supplemental evidence (consisting 
of affidavits and a computer analysis assessing the mathematical possibil- 
ity that chance or accident could have accounted for the exclusion of 
blacks from the grand jury), where such evidence did not fundamentally 
alter the claim already considered by the state courts. Pp. 257-260. 

2. The longstanding rule requiring reversal of the conviction of a de- 
fendant indicted by a grand jury from which members of his own race 
were systematically excluded will not be abandoned in this case on the 
theory that discrimination in the grand jury amounted to harmless error 
and that respondent's conviction after a fair trial purged any taint attrib- 
utable to the grand jury process. Intentional discrimination in the se- 
lection of grand jurors is a grave constitutional trespass, possible only 
under color of state authority, and wholly within the State's power to 
prevent. Even if the grand jury's determination of probable cause to 
believe that a defendant has committed a crime is confirmed in hindsight 
by a conviction on the indicted offense, that confirmation does not sug- 
gest that discrimination did not impermissibly infect the framing of the 
indictment and, consequently, the nature or existence of the proceedings 
to come. And just as a conviction is void under the Equal Protection 
Clause if the prosecutor deliberately charged the defendant on account of 



trt ' 












256 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

Before trial in Superior Court, respondent moved to quash 
the indictment on the ground that it had been issued by a 
grand jury from which blacks had been systematically ex- 
cluded. A hearing on respondent's motion was held by 
Judge Meredith Wingrove, who was the sole Superior Court 
Judge in the county and had personally selected all grand 
juries, including the one that indicted respondent, for the 
previous seven years. Absolving himself of any discrimina- 
tory intent, Judge Wingrove refused to quash the indict- 
ment. 1 Respondent was subsequently convicted of first- 
degree murder. 

For the next 16 years, respondent pursued appeals and col- 
lateral relief in the state courts, raising at every opportunity 
his equal protection challenge to the grand jury that indicted 
him. 2 Less than one month after the California Supreme 
Court foreclosed his final avenue of state relief in 1978, re- 
spondent filed a petition for a writ of habeas corpus in federal 
court, raising that same challenge. The District Court con- 
cluded that respondent had established discrimination in the 
grand jury, and granted the writ. See Hillery v. Pulley, 
563 F. Supp. 1228 (ED Cal. 1983). The Court of Appeals 



1 Three thorough and well-reasoned opinions of the District Court dis- 
cuss in detail the evidence adduced at the hearing, as well as other aspects 
of the case. See Hillery v. Pulley, 563 F. Supp. 1228 (ED Cal. 1983); 
Hillery v. Pulley, 533 F. Supp. 1189 (ED Cal. 1982); Hillery v. Sumner, 
496 F. Supp. 632 (ED Cal. 1980). We repeat here only those portions rele- 
vant to the issues before the Court. 

2 See People v. Hillery, 34 Cal. Rptr. 853, 386 P. 2d 477 (1963) (affirm- 
ing conviction; rejecting discrimination claim); People v. Hillery, 62 Cal. 2d 
692, 401 P. 2d 382 (1965) (on rehearing, rejecting discrimination claim; re- 
versing sentence), cert, denied, 386 U. S. 938 (1967); People v. Hillery, 65 
Cal. 2d 795, 423 P. 2d 208 (1967) (after remand, affirming sentence), cert, 
denied, 389 U. S. 986 (1968); In re Hillery, 71 Cal. 2d 857, 457 P. 2d 565 
(1969) (on original petition for habeas corpus, reversing sentence); People 
v. Hillery, 10 Cal. 3d 897, 519 P. 2d 572 (1974) (after remand, reducing 
sentence); In re Hillery, Crim. No. 20424 (Cal. 1978) (affirming denial of 
state habeas corpus). 



VASQUEZ v. KILLER Y 257 

254 Opinion of the Court 

affirmed, 733 F. 2d 644 (CA9 1984), and we granted certio- 
rari, 470 U. S. 1026 (1985). 

II 

As a threshold matter, we turn to petitioner's contention 
that respondent has circumvented his obligation to exhaust 
state remedies before seeking collateral relief in federal 
court. 28 U. S. C. 2254(b). The exhaustion issue had its 
genesis in this case when the Federal District Judge saw a 
need to "supplement and clarify" the state-court record pre- 
sented for review. Record, Doc. No. 8, p. 2. Upon author- 
ity of 28 U. S. C. 2254 Rule 7, the judge directed the State 
to provide more figures "demonstrating what portion of the 
Black population in Kings County was eligible for grand jury 
service." Record, Doc. No. 8, p. 3. He also directed the 
parties to present their views regarding the application of 
statistical probability analysis to the facts of this case, to 
assist him in "focus[ing] on the likelihood that chance or acci- 
dent alone could account for the exclusion of a group from 
grand jury service." Ibid. Petitioner objects that the sub- 
missions made in response to the judge's order "drastically" 
altered respondent's claim and rendered it unsuitable for fed- 
eral habeas review without prior consideration by the state 
courts. Brief for Petitioner 81. 

The exhaustion doctrine seeks to afford the state courts a 
meaningful opportunity to consider allegations of legal error 
without interference from the federal judiciary. Rose v, 
Lundy, 455 U. S. 509, 515 (1982). Under standards estab- 
lished by this Court, a state prisoner may initiate a federal 
habeas petition "[o]nly if the state courts have had the first 
opportunity to hear the claim sought to be vindicated . . . ." 
Picard v. Connor, 404 U. S. 270, 276 (1971). "It follows, of 
course, that once the federal claim has been fairly presented 
to the state courts, the exhaustion requirement is satisfied." 
Id., at 275; see also Humphrey v. Cady, 405 U. S. 504, 
516-517, n. 18 (1972). We have never held that presentation 



258 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

of additional facts to the district court, pursuant to that 
court's directions, evades the exhaustion requirement when 
the prisoner has presented the substance of his claim to the 
state courts. See Picard, supra, at 278. 

Rule 7(b) permits a federal district court in a habeas pro- 
ceeding to expand the existing record to "include, without 
limitation, . . . documents, exhibits, and answers under oath, 
if so directed, to written interrogatories propounded by the 
judge. Affidavits may be submitted and considered as a 
part of the record." In this case, the District Court sought 
to clarify the relevant facts, an endeavor wholly consistent 
with Rule 7 and the purpose of the writ. See Townsend v. 
Sain, 372 U. S. 293, 313 (1963). The sole question here is 
whether this valid exercise of the court's power to expand 
the record had the effect of undermining the policies of the 
exhaustion requirement. 

Several affidavits challenged here as "new" evidence sup- 
ported respondent's allegations that no black had ever served 
on the grand jury in Kings County and that qualified blacks in 
the county were available to serve, which he had pressed in 
his pretrial motion to quash in Superior Court, App. 28-30, 
and throughout the state proceedings. The California 
Supreme Court found that the total absence of blacks from 
the grand jury in the history of Kings County was an undis- 
puted fact. People v. Hillery, 62 Cal. 2d 692, 709, 401 P. 2d 
382, 392 (1965), cert, denied, 386 U. S. 938 (1967). That fact 
was entitled, therefore, to a presumption of correctness on 
federal review. Sumner v. Mata, 449 U. S. 539, 545-546 
(1981); see Hillery v. Pulley, 533 F. Supp. 1189, 1201, n. 25 
(ED Cal. 1982). The California Supreme Court also dis- 
cussed Judge Wingrove's consideration of blacks' qualifica- 
tions, and found that blacks had served as petit jurors, 62 
Cal. 2d, at 710, 401 P. 2d, at 392-393, minimum eligibility 
requirements for which were substantially the same as for 
grand jurors, see 563 F. Supp., at 1245; Mar, The California 
Grand Jury: Vestige of Aristocracy, 1 Pac. L. J. 36, 40 



VASQUEZ u HILLERY 259 

254 Opinion of the Court 

(1970). Consequently, the additional affidavits introduced 
no claim upon which the state courts had not passed. 

The remaining "new" evidence under attack, a computer 
analysis submitted in response to the District Court's re- 
quest, assessed the mathematical probability that chance or 
accident could have accounted for the exclusion of blacks 
from the Kings County grand jury over the years at issue. 3 
Petitioner would have us conclude that the "sophisticated 
computer techniques" rendered respondent's claim a "wholly 
different animal. " Brief for Petitioner 80-81 . These statis- 
tical estimates, however, added nothing to the case that this 
Court has not considered intrinsic to the consideration of any 
grand jury discrimination claim. As early as 1942, this 
Court rejected a contention that absence of blacks on the 
grand jury was insufficient to support an inference of dis- 
crimination, summarily asserting that "chance or accident 
could hardly have accounted for the continuous omission of 
negroes from the grand jury lists for so long a period as 
sixteen years or more." Hill v. Texas, 316 U. S. 400, 404 
(1942). This proposition, which the Court derived solely on 
the basis of judicial intuition, is precisely what respondent 
sought to establish by methods now considered somewhat 
more reliable. 

More recently, in reviewing a habeas corpus proceeding, 
this Court independently applied general statistical princi- 
ples to the evidence on the record in order to assess the role 
of chance in the exclusion of Mexican-Americans from a 
grand jury in Texas. Castaneda v. Partida, 430 U. S. 482, 

3 The statistical expert concluded that if the grand juries selected in 
Kings County between 1900 and 1962 had been chosen by chance, the prob- 
ability that no black would have been selected was 57 in 100,000 million. 
Although the State made no attempt to rebut this testimony, the District 
Court questioned the reliability of the expert's analysis, performed its own 
analysis of the data, and ultimately accepted the expert's conclusions only 
for the 7-year period of Judge Wingrove's tenure, which yielded a probabil- 
ity of 2 in 1,000 that the phenomenon was attributable to chance. 563 F. 
Supp., at 1241-1244. 



260 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

496-497, n. 17 (1977). Form would indeed triumph over sub- 
stance were we to allow the question of exhaustion to turn 
on whether a federal judge has relied on educated conjecture 
or has sought out a more sophisticated interpretative aid to 
accomplish the same objective. 

We emphasize that the District Court's request for further 
information was evidently motivated by a responsible con- 
cern that it provide the meaningful federal review of con- 
stitutional claims that the writ of habeas corpus has contem- 
plated throughout its history. 533 F. Supp., at 1202-1203; 
see Townsend v. Sam, supra, at 311-312. Respondent had 
initially submitted only the evidence that had been con- 
sidered in state court, and subsequently complied with the 
court's request by furnishing materials no broader than nec- 
essary to meet the needs of the court. Accordingly, the cir- 
cumstances present no occasion for the Court to consider a 
case in which the prisoner has attempted to expedite federal 
review by deliberately withholding essential facts from the 
state courts. We hold merely that the supplemental evi- 
dence presented by respondent did not fundamentally alter 
the legal claim already considered by the state courts, and, 
therefore, did not require that respondent be remitted to 
state court for consideration of that evidence. 

Ill 

On the merits, petitioner urges this Court to find that dis- 
crimination in the grand jury amounted to harmless error in 
this case, claiming that the evidence against respondent was 
overwhelming and that discrimination no longer infects the 
selection of grand juries in Kings County. Respondent's 
conviction after a fair trial, we are told, purged any taint 
attributable to the indictment process. Our acceptance of 
this theory would require abandonment of more than a cen- 
tury of consistent precedent. 

In 1880, this Court reversed a state conviction on the 
ground that the indictment charging the offense had been 



VASQUEZ u HILLERY 261 

254 Opinion of the Court 

issued by a grand jury from which blacks had been excluded. 
We reasoned that deliberate exclusion of blacks "is practi- 
cally a brand upon them, affixed by the law, an assertion of 
their inferiority, and a stimulant to that race prejudice which 
is an impediment to securing to individuals of the race that 
equal justice which the law aims to secure to all others." 
Strauder v. West Virginia, 100 U. S. 303, 308 (1880). 

Thereafter, the Court has repeatedly rejected all argu- 
ments that a conviction may stand despite racial discrimina- 
tion in the selection of the grand jury. See, e. g. , Neal v. 
Delaware, 103 U. S. 370, 396 (1881); Bush v. Kentucky, 107 
U. S. 110 (1883); Gibson v. Mississippi, 162 U. S. 565 (1896); 
Carter v. Texas, 177 U. S. 442 (1900); Rogers v. Alabama, 
192 U. S. 226 (1904); Pierre v. Louisiana, 306 U. S. 354 
(1939); Smith v. Texas, 311 U. S. 128 (1940); Hill v. Texas, 
supra; Cassell v. Texas, 339 U. S. 282 (1950); Reece v. Geor- 
gia, 350 U. S. 85 (1955); Eubanks v. Louisiana, 356 U. S. 
584 (1958); Arnold v. North Carolina, 376 U. S. 773 (1964); 
Alexander v. Louisiana, 405 U. S. 625 (1972). Only six 
years ago, the Court explicitly addressed the question 
whether this unbroken line of case law should be reconsid- 
ered in favor of a harmless-error standard, and determined 
that it should not. Rose v. Mitchell, 443 U. S. 545 (1979). 4 

4 The dissent attempts to lessen the precedential weight of Mitchell by 
characterizing it as an advisory opinion. Post, at 270, n. 4. In Part II 
of Mitchell, three Justices reaffirmed the principle that grand jury dis- 
crimination requires reversal of the conviction in all cases; in Parts III and 
IV, they concluded that the prisoner had failed to make out a prima facie 
case of discrimination. 443 U. S., at 574. Two additional Justices explic- 
itly joined Part II, but dissented from the judgment because they believed 
that discrimination had been established, and that the conviction must, 
therefore, be reversed. Id., at 588 (WHITE, J., joined by STEVENS, J., 
dissenting). The dissent here offers a citation to Gregg v. Georgia, 428 
U. S. 153, 169, n. 15 (1976) (opinion of Stewart, POWELL, and STEVENS, 
JJ.), in support of its unprecedented argument that a statement of legal 
opinion joined by five Justices of this Court does not carry the force of law. 
The cited passage, however, refers only to the manner in which one may 
discern a single holding of the Court in cases in which no opinion on the 



262 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

We reaffirmed our conviction that discrimination on the basis 
of race in the selection of grand jurors "strikes at the funda- 
mental values of our judicial system and our society as a 
whole," and that the criminal defendant's right to equal pro- 
tection of the laws has been denied when he is indicted by a 
grand jury from which members of a racial group purpose- 
fully have been excluded. Id., at 556. 

Petitioner argues here that requiring a State to retry a 
defendant, sometimes years later, imposes on it an unduly 
harsh penalty for a constitutional defect bearing no relation 
to the fundamental fairness of the trial. Yet intentional dis- 
crimination in the selection of grand jurors is a grave con- 
stitutional trespass, possible only under color of state author- 
ity, and wholly within the power of the State to prevent. 
Thus, the remedy we have embraced for over a century the 
only effective remedy for this violation 5 is not dispropor- 
tionate to the evil that it seeks to deter. If grand jury dis- 
crimination becomes a thing of the past, no conviction 
ever again be lost on account of it. 



issue in question has garnered the support of a majority. That discussion 
is inapplicable to Part II of Mitchell, to which five Justices expressly 
subscribed. 

6 As we pointed out in Rose v. Mitchell, alternative remedies are in- 
effectual. Federal law provides a criminal prohibition against discrimina- 
tion in the selection of grand jurors, 18 U. S. C. 243, but according to sta- 
tistics compiled by the Administrative Office of the United States Courts, 
that section has not been the basis for a single prosecution in the past nine 
years. With respect to prior years, for which precise information is not 
available, we have been unable to find evidence of any prosecution or con- 
viction under the statute in the last century. The other putative remedy 
for grand jury discrimination is 42 U. S. C. 1983, which, in theory, allows 
redress for blacks who have been excluded from grand jury service. See 
Carter v. Jury Comm'n of Greene County, 396 U. S. 320 (1970). These 
suits are also extremely rare, undoubtedly because the potential plaintiffs, 
eligible blacks not called for grand jury service, are often without knowl- 
edge of the discriminatory practices and without incentive to lau'ich costly 
legal battles to stop them. 



VASQUEZ v. HILLERY 263 

254 Opinion of the Court 

Nor are we persuaded that discrimination in the grand jury 
has no effect on the fairness of the criminal trials that result 
from that grand jury's actions. The grand jury does not de- 
termine only that probable cause exists to believe that a de- 
fendant committed a crime, or that it does not. In the hands 
of the grand jury lies the power to charge a greater offense or 
a lesser offense; numerous counts or a single count; and per- 
haps most significant of all, a capital offense or a noncapital 
offense all on the basis of the same facts. Moreover, "[t]he 
grand jury is not bound to indict in every case where a con- 
viction can be obtained." United States v. Ciambrone, 601 
F. 2d 616, 629 (CA2 1979) (Friendly, J., dissenting). Thus, 
even if a grand jury's determination of probable cause is con- 
firmed in hindsight by a conviction on the indicted offense, 
that confirmation in no way suggests that the discrimination 
did not impermissibly infect the framing of the indictment 
and, consequently, the nature or very existence of the pro- 
ceedings to come. 

When constitutional error calls into question the objectiv- 
ity of those charged with bringing a defendant to judgment, a 
reviewing court can neither indulge a presumption of regular- 
ity nor evaluate the resulting harm. Accordingly, when the 
trial judge is discovered to have had some basis for rendering 
a biased judgment, his actual motivations are hidden from 
review, and we must presume that the process was impaired. 
See Tumey v. Ohio, 273 U. S. 510, 535 (1927) (reversal re- 
quired when judge has financial interest in conviction, de- 
spite lack of indication that bias influenced decisions). Simi- 
larly, -when a petit jury has been selected upon improper 
criteria or has been exposed to prejudicial publicity, we have 
required reversal of the conviction because the effect of the 
violation cannot be ascertained. See Davis v. Georgia, 429 
U. S. 122 (1976) (per curiam); Sheppard v. Maxwell, 384 
U. S. 333, 351-352 (1966). Like these fundamental flaws, 
which never have been thought harmless, discrimination in 
the grand jury undermines the structural integrity of the 



264 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

criminal tribunal itself, and is not amenable to harmless-error 
review, 6 

Just as a conviction is void under the Equal Protection 
Clause if the prosecutor deliberately charged the defendant 
on account of his race, see United States v. Batchelder, 442 
U. S. 114, 125, n. 9 (1979), a conviction cannot be understood 
to cure the taint attributable to a charging body selected 
on the basis of race. Once having found discrimination in 
the selection of a grand jury, we simply cannot know that the 
need to indict would have been assessed in the same way by a 
grand jury properly constituted. The overriding imperative 
to eliminate this systemic flaw in the charging process, as 
well as the difficulty of assessing its effect on any given de- 
fendant, requires our continued adherence to a rule of man- 
datory reversal. 

The opinion of the Court in Mitchell ably presented other 
justifications, based on the necessity for vindicating Four- 
teenth Amendment rights, supporting a policy of automatic 
reversal in cases of grand jury discrimination. That analysis 
persuasively demonstrated that the justifications retain their 
validity in modern times, for "114 years after the close of the 
War Between the States and nearly 100 years after Strauder, 
racial and other forms of discrimination still remain a fact of 
life, in the administration of justice as in our society as a 
whole. " 443 U. S. , at 558-559. The six years since Mitchell 
have given us no reason to doubt the continuing truth of that 
observation. 

IV 

The dissent propounds a theory, not advanced by any 
party, which would condition the grant of relief upon the pas- 
sage of time between a conviction and the filing of a petition 
for federal habeas corpus, depending upon the ability of a 
State to obtain a second conviction. Sound jurisprudence 

6 JUSTICE WHITE does not join m the foregoing paragraph. 



VASQUEZ v. HILLERY 265 

254 Opinion of the Court 

counsels against our adoption of that approach to habeas cor- 
pus claims. 

The Habeas Corpus Rules permit a State to move for dis- 
missal of a habeas petition when it "has been prejudiced in its 
ability to respond to the petition by delay in its filing." 28 
U. S. C. 2254 Rule 9(a). Indeed, petitioner filed such a 
motion in this case, and it was denied because the District 
Court found that no prejudicial delay had been caused by re- 
spondent. Hillery v. Sumner, 496 F. Supp. 632, 637 (ED 
Cal. 1980). Congress has not seen fit, however, to provide 
the State with an additional defense to habeas corpus peti- 
tions based on the difficulties that it will face if forced to 
retry the defendant. The Judicial Conference Advisory 
Committee on Criminal Rules has drafted a proposed amend- 
ment to Rule 9(a), which would permit dismissal of a habeas 
corpus petition upon a demonstration that the State has been 
prejudiced, either in defending against the prisoner's federal 
claim or in bringing the prisoner to trial again should the fed- 
eral claim prove meritorious. 52 U. S. L. W. 2145 (1983). 
That proposal has not been adopted. And, despite many at- 
tempts in recent years, Congress has yet to create a statute 
of limitations for federal habeas corpus actions. See L. 
Yackle, Postconviction Remedies 19 (Supp. 1985) (describ- 
ing relevant bills introduced in past several Congresses). 
We should not lightly create a new judicial rule, in the guise 
of constitutional interpretation, to achieve the same end. 

V 

Today's decision is supported, though not compelled, by 
the important doctrine of stare decisis, the means by which 
we ensure that the law will not merely change erratically, but 
will develop in a principled and intelligible fashion. That 
doctrine permits society to presume that bedrock principles 
are founded in the law rather than in the proclivities of indi- 
viduals, and thereby contributes to the integrity of our con- 
stitutional system of government, both in appearance and in 



266 OCTOBER TERM, 1985 

O'CONNOR, J., concurring in judgment 474 U. S. 

fact. While stare decisis is not an inexorable command, the 
careful observer will discern that any detours from the 
straight path of stare decisis in our past have occurred for 
articulable reasons, and only when the Court has felt obliged 
"to bring its opinions into agreement with experience and 
with facts newly ascertained." Burnet v. Coronado Oil & 
Gas Co., 285 U. S. 393, 412 (1932) (Brandeis, J., dissenting). 
Our history does not impose any rigid formula to constrain 
the Court in the disposition of cases. Rather, its lesson is 
that every successful proponent of overruling precedent has 
borne the heavy burden of persuading the Court that changes 
in society or in the law dictate that the values served by stare 
decisis yield in favor of a greater objective. In the case of 
grand jury discrimination, we have been offered no reason 
to believe that any such metamorphosis has rendered the 
Court's long commitment to a rule of reversal outdated, ill- 
founded, unworkable, or otherwise legitimately vulnerable to 
serious reconsideration. On the contrary, the need for such 
a rule is as compelling today as it was at its inception. 

The judgment of the Court of Appeals, accordingly, is 
affirmed. 

It is so ordered. 

JUSTICE O'CONNOR, concurring hi the judgment. 

This Court has long held that upon proof of systematic ex- 
clusion of blacks from a grand jury issuing an indictment, the 
admittedly costly remedy of reversal of a conviction there- 
after obtained through a fair trial is necessary in order to 
eradicate and deter such discrimination. Not until Rose v. 
Mitchell, 443 U. S. 545 (1979), however, did the Court 
squarely address the question whether, given the availability 
of this remedy on direct review, it is also necessary to make 
the same remedy available when the petitioner seeks to 
renew his claim of discriminatory exclusion on federal habeas 
corpus review. See id., at 582 (POWELL, J., concurring in 
judgment). 

I share the view expressed by JUSTICE POWELL in Rose: a 
petitioner who has been afforded by the state courts a full 



VASQUEZ v. HILLERY 267 

254 POWELL, J., dissenting 

and fair opportunity to litigate the claim that blacks were dis- 
criminatorily excluded from the grand jury which issued the 
indictment should be foreclosed from relitigating that claim 
on federal habeas. The incremental value that continued 
challenges may have in rooting out and deterring such dis- 
crimination is outweighed by the unique considerations that 
apply when the habeas writ is invoked. The history and pur- 
poses of the writ, as well as weighty finality interests and 
considerations of federalism, counsel against permitting a pe- 
titioner to renew on habeas a challenge which does not under- 
mine the justness of his trial, conviction, or incarceration. 
See id., at 579-588. 

In this case, the District Court held that respondent was 
not given a full and fair hearing on his discriminatory exclu- 
sion claim in state court. See Hillery v. Pulley, 563 F. 
Supp. 1228 (ED Cal. 1983). That holding was not altered on 
appeal, 733 F. 2d 644 (CA9 1984), nor is it challenged by the 
petitioner in this Court. Respondent's claim was therefore 
cognizable in federal habeas proceedings. Because I am not 
convinced that a sufficiently compelling case has been made 
for reversing this Court's precedents with respect to the 
remedy applicable to properly cognizable claims of discrimi- 
natory exclusion of grand jurors, I concur in the judgment of 
the Court. 

JUSTICE POWELL, with whom THE CHIEF JUSTICE and 
JUSTICE REHNQUIST join, dissenting. 

Respondent, a black man, was indicted by a grand jury 
having no black members for the stabbing murder of a 15- 
year-old girl. A petit jury found respondent guilty of that 
charge beyond a reasonable doubt, in a trial the fairness of 
which is unchallenged here. 1 Twenty-three years later, we 
are asked to grant respondent's petition for a writ of habeas 

1 Respondent was thrice sentenced to death for this murder. See Peo- 
ple v. Hillery, 10 Cal. 3d 897, 519 P. 2d 572 (1974); ante, at 256, n. 2. That 
sentence was ultimately reduced to life imprisonment because the Califor- 
nia Supreme Court found that imposition of the death penalty was in all 
cases inconsistent with the California Constitution. Ibid. 



268 OCTOBER TERM, 1985 

POWELL, J., dissenting 474 U. S. 

corpus and thereby require a new trial if that is still feasi- 
bleon the ground that blacks were purposefully excluded 
from the grand jury that indicted him. It is undisputed that 
race discrimination has long since disappeared from the 
grand jury selection process in Kings County, California. It 
is undisputed that a grand jury that perfectly represented 
Kings County's population at the time of respondent's indict- 
ment would have contained only one black member. 2 Yet 
the Court holds that respondent's petition must be granted, 
and that respondent must be freed unless the State is able to 
reconvict, more than two decades after the murder that led 
to his incarceration. 

It is difficult to reconcile this result with a rational system 
of justice. The Court nevertheless finds its decision com- 
pelled by a century of precedent and by the interests of re- 
spondent and of society in ending race discrimination in the 
selection of grand juries. I dissent for two reasons. First, 
in my view, any error in the selection of the grand jury that 
indicted respondent is constitutionally harmless. Second, 
even assuming that the harmless-error rule does not apply, 
reversal of respondent's conviction is an inappropriate rem- 
edy for the wrong that prompts this case. 

I 

The Court concludes that the harmless-error rule does not 
apply to claims of grand jury discrimination. Ante, at 261. 
This conclusion is said to follow from a line of cases going 
back over 100 years. Ante, at 260-261. In my view, it fol- 
lows from a misapplication of the doctrine of stare decisis. 

Adhering to precedent "is usually the wise policy, because 
in most matters it is more important that the applicable rule 
of law be settled than that it be settled right." Burnet v. 

2 According to 1960 census figures, 4.7% of Kings County's population 
over age 21 was black. Hillery v. Pulley, 563 F. Supp. 1228, 1232 (ED 
Gal. 1983). Respondent's grand jury consisted of 19 individuals, all of 
whom were white. Id., at 1231. 



VASQUEZ v. HILLERY 269 

254 POWELL, J., dissenting 

Coronado Oil & Gas Co., 285 U. S. 393, 406 (1932) (Brandeis, 
J., dissenting). Accordingly, "any departure from the doc- 
trine of stare decisis demands special justification." Arizona 
v. Rumsey, 467 U. S. 203, 212 (1984); Garcia v. San Antonio 
Metropolitan Transit Authority, 469 U. S. 528, 559 (1985) 
(POWELL, J., dissenting). Nevertheless, when governing 
decisions are badly reasoned, or conflict with other, more 
recent authority, the Court "has never felt constrained to 
follow precedent." Smith v. Allwright, 321 U. S. 649, 665 
(1944). Instead, particularly where constitutional issues are 
involved, "[t]his Court has shown a readiness to correct its 
errors even though of long standing." United States v. 
Bamett, 376 U. S. 681, 699 (1964). In this case, the Court 
misapplies stare decisis because it relies only on decisions 
concerning grand jury discrimination. There is other 
precedent, including important cases of more recent vintage 
than those cited by the Court, that should control this case. 
Those cases hold, or clearly imply, that a conviction should 
not be reversed for constitutional error where the error did 
not affect the outcome of the prosecution. 

In Chapman v. California, 386 U. S. 18 (1967), the Court 
held that a trial judge's improper comment on the defendant's 
failure to testify a clear violation of the Fifth and Four- 
teenth Amendments was not a proper basis for reversal if 
harmless. Id., at 21-24. Since Chapman, "the Court has 
consistently made clear that it is the duty of a reviewing 
court to consider the trial record as a whole and to ignore er- 
rors that are harmless, including most constitutional viola- 
tions." United States v. Hasting, 461 U. S. 499, 509 (1983). 
This rule has been applied to a variety of constitutional viola- 
tions. See Harrington v. California, 395 U. S. 250 (1969) 
(use of co-conspirator confession in violation of Confrontation 
Clause); Coleman v. Alabama, 399 U. S. 1 (1970) (denial of 
counsel at preliminary hearing); Milton v. Wainwright, 407 
U. S. 371 (1972) (use of confession obtained in violation of 



270 OCTOBER TERM, 1985 

POWELL, J., dissenting 474 U. S. 

right to counsel); Gerstein v. Pugh, 420 U. S. 103 (1975) (ille- 
gal arrest). 

Other doctrines reflect the same principle. A defendant 
claiming ineffective assistance of counsel must show that 
counsel's incompetence caused him actual prejudice. Strick- 
land v. Washington, 466 U. S. 668, 687 (1984). This is so 
even though counsel "made errors so serious that [he] was 
not functioning as the 'counsel' guaranteed by the Sixth 
Amendment." Ibid. 3 Similarly, a defendant who is barred 
by a procedural default from asserting a constitutional claim 
on direct appeal cannot raise the claim on habeas corpus with- 
out showing that the error actually prejudiced him. United 
States v. Frady, 456 U. S. 152, 170 (1982); see also Wain- 
wright v. Sykes, 433 U. S. 72 (1977). 

In Rose v. Mitchell, 443 U. S. 545 (1979), the Court con- 
tended that the principle of these cases is inapplicable to 
grand jury discrimination claims, because grand jury dis- 
crimination "destroys the appearance of justice and thereby 
casts doubt on the integrity of the judicial process." 4 Id. , at 
555-556. But every constitutional error may be said to raise 
questions as to the "appearance of justice" and the "integrity 



8 As the Court stated in Strickland, "[w]hen a defendant challenges a 
conviction, the question is whether there is a reasonable probability that, 
absent the errors, the factfinder would have had a reasonable doubt re- 
specting guilt." 466 U. S., at 695. 

4 Although all parts of JUSTICE BLACKMUN'S opinion in Rose v. Mitchell 
were joined by four other Justices, its precedential weight is subject to 
some question. In particular, Part II of the opinion the part that dis- 
cusses the legal principles applicable to grand jury discrimination claims 
generally was not joined by five Justices who also joined in the judgment. 
Cf. Gregg v. Georgia, 428 U. S. 153, 169, n. 15 (1976) (Court's holding is 
'that position taken by those Members who concurred in the judgments on 
the narrowest grounds"). Moreover, the opinion's discussion of general 
principles was irrelevant to the result, which turned on the insufficiency 
of the evidence of discrimination. In my view, therefore, Rose is little 
more than an advisory opinion. See Flast v. Cohen, 392 U. S. 83, 94-95 
(1968); Frankfurter, Note on Advisory Opinions, 37 Harv. L. Rev. 1002, 
1005-1007 (1924). 



VASQUEZ v. HILLERY 271 

254 POWELL, J., dissenting 

of the judicial process." Nevertheless, as the cases cited 
above show, the Court has required some showing of actual 
prejudice to the defendant as a prerequisite to reversal, even 
when the constitutional error directly affects the fairness of 
the defendant's trial. Compare Strickland v. Washington, 
supra, at 687 (requiring prejudice in ineffective assistance of 
counsel claims), with Gideon v. Wainwright, 372 U. S. 335, 
344345 (1963) (emphasizing importance of right to counsel to 
ensure fair trial). Grand jury discrimination is a serious vi- 
olation of our constitutional order, but so also are the depri- 
vations of rights guaranteed by the Fourth, Fifth, Sixth, and 
Fourteenth Amendments to which we have applied harmless- 
error analysis or an analogous prejudice requirement. 
Moreover, grand jury discrimination occurs prior to trial, 
while the asserted constitutional violations in most of the 
above-cited cases occurred during trial. The Court does not 
adequately explain why grand jury discrimination affects the 
"integrity of the judicial process" to a greater extent than the 
deprivation of equally vital constitutional rights, nor why it is 
exempt from a prejudice requirement while other constitu- 
tional errors are not. 

Thirty-one years ago, in a typically prescient opinion, Jus- 
tice Jackson called for such an explanation. Cassell v. 
Texas, 339 U. S. 282, 299 (1950) (Jackson, J., dissenting). 
None has been forthcoming. Rose v. Mitchell, supra, at 575 
(Stewart, J., concurring in judgment). Since then, as the 
cases cited above show, the Court has firmly established the 
principle that error that does not affect the outcome of a pros- 
ecution cannot justify reversing an otherwise valid convic- 
tion. That proposition and the decisions of the last two 
decades that have reinforced it is flatly inconsistent with 
the result reached today. The Court's failure to reconcile 
this conflict itself violates the doctrine of stare decisis. 

I would dissent from the Court's decision for this reason 
alone. The reasoning of Chapman and its progeny accords 
with a rational system of justice one that fully preserves 



272 OCTOBER TERM, 1985 

POWELL, J., dissenting 474 U. S. 

constitutional rights but recognizes that not every violation 
undermines the fairness of a given conviction. In this case, 
the grand jury error did not affect the fairness of respond- 
ent's trial or otherwise injure respondent in any cognizable 
way. Infra, at 274-277. I therefore would reverse the 
Court of Appeals. 

II 

Even assuming that now-established harmless-error prin- 
ciples are inapplicable, this case unjustifiably extends the 
"century of precedent" on which the Court relies. Those de- 
cisions do not require reversal of a decades-old conviction on 
the ground that it was preceded by an indictment issued by a 
discriminatorily selected grand jury. The purposes of the 
"automatic reversal" rule require otherwise. 



No one questions that race discrimination in grand jury 
selection violates the Equal Protection Clause of the Four- 
teenth Amendment. E. g., Rose v. Mitchell, 443 U. S., at 
551; id., at 577-578 (Stewart, J., concurring in judgment); 
id., at 590-591 (WHITE, J., dissenting). The issue in this 
case is not whether the State erred, but what should be done 
about it. The question is whether reversal of respondent's 
conviction either is compelled by the Constitution or is an 
appropriate, but not constitutionally required, remedy for 
racial discrimination in the selection of grand jurors. See 
Bush v. Lucas, 462 U. S. 367, 378 (1983); Davis v. Passman, 
442 U. S. 228, 245 (1979); Bivens v. Six Unknown Federal 
Narcotics Agents, 403 U. S. 388, 403, 407 (1971) (Harlan, J., 
concurring in judgment). 

The Constitution does not compel the rule of automatic 
reversal that the Court applies today. In Hobby v. United 
States, 468 U. S. 339 (1984), we acknowledged that discrimi- 
natory selection of grand jury foremen violated the Constitu- 
tion, but we concluded that reversing the petitioner's convic- 
tion was an inappropriate remedy for the violation since 



VASQUEZ v. HILLERY 273 

254 POWELL, J., dissenting 

grand jury foremen play a minor part in federal prosecutions. 
Id., at 345-346; see also Oregon v. Elstad, 470 U. S. 298, 
305-307 (1985) (suppression of evidence obtained in violation 
of Miranda v. Arizona, 384 U. S. 436 (1966), is not constitu- 
tionally compelled); United States v. Leon, 468 U. S. 897, 
905-906 (1984) (suppression of evidence obtained in violation 
of the Fourth Amendment is not constitutionally compelled); 
Stone v. Powell, 428 U. S. 465, 489 (1976); see generally 
Monaghan, Foreword: Constitutional Common Law, 89 Harv. 
L. Rev. 1 (1975). The rationale of Hobby cannot be squared 
with the claim that discriminatory selection of the body that 
charged the defendant compels reversal of the defendant's 
conviction. Rather, it is necessary to determine whether re- 
versal of respondent's conviction is an "appropriate remedy" 
for the exclusion of blacks from grand juries in Kings County, 
California, in 1962. 5 Hobby, supra, at 342; see Rose v. 
Mitchell, supra, at 558-559 (weighing costs and benefits of 
awarding relief to petitioners claiming grand jury discrim- 
ination). Cf. Merrill, The Common Law Powers of Federal 
Courts, 52 U. Chi. L. Rev. 1, 53 (1985) (arguing that judi- 
cially created remedies are appropriate only when "necessary 
in order to preserve a specifically intended federal right"). 
That determination depends on (i) the utility of the remedy in 
either correcting any injustice to respondent or deterring un- 
constitutional conduct by state officials, and (ii) the remedy's 
costs to society. United States v. Leon, supra, at 906-907; 
Stone v. Powell, supra, at 489. 

B 

The scope of the remedy depends in part on the nature and 
degree of the harm caused by the wrong. The Court per- 
ceives two kinds of harm flowing from grand jury discrimi- 
nation: harm to respondent's interest in not being charged 



5 Respondent does not allege that discriminatory selection of grand ju- 
rors continued after 1962. Nor is there anything in the record to support 
such an allegation. 



274 OCTOBER TERM, 1985 

POWELL, J., dissenting 474 U. S. 

and convicted because of his race, and harm to society's inter- 
est in deterring racial discrimination. I consider in turn 
these asserted interests and the degree to which they are 
served in this case by the Court's automatic reversal rule. 

(1) 

The Court does not contend that the discriminatory selec- 
tion of the grand jury that indicted respondent calls into 
question the correctness of the decision to indict. Such 
a contention could not withstand analysis. Following his 
indictment for murder, respondent was convicted of that 
charge in a trial and by a jury whose fairness is not now 
challenged. The conviction, affirmed on direct appeal in 
1965, 6 establishes that the grand jury's decision to indict was 
indisputably correct. Rose v. Mitchell, supra, at 575576 
(Stewart, J., concurring in judgment); Cassell v. Texas, 339 
U. S., at 301-302 (Jackson, J., dissenting). Justice Jackson 
expressed the point best: 

"It hardly lies in the mouth of a defendant whom a 
fairly chosen trial jury has found guilty beyond reason- 
able doubt, to say that his indictment is attributable to 
prejudice. In this case a trial judge heard the prosecu- 
tion's evidence, ruled it sufficient to warrant a convic- 
tion, appellate courts have held the same, and no further 
question about it is before us. Moreover, a jury admit- 
tedly chosen without racial discrimination has heard the 
prosecution's and defendant's evidence and has held that 
guilt beyond a reasonable doubt has been proved. That 
finding, too, has been affirmed on appeal and is not here. 
Under such circumstances, it is frivolous to contend that 
any grand jury, however constituted, could have done its 



6 The California Supreme Court affirmed respondent's conviction in 
1963; on rehearing in 1965, the court reversed respondent's death sentence 
but again affirmed his conviction. Ante, at 256, n. 2. Respondent is 
presently serving a sentence of life imprisonment. 



VASQUEZ v. HILLERY 275 

254 POWELL, J., dissenting 

duty in any way other than to indict." Cassell v. Texas, 
supra, at 302 (dissenting). 

The Court nevertheless decides that discrimination in the 
selection of the grand jury potentially harmed respondent, 
because the grand jury is vested with broad discretion in de- 
ciding whether to indict and in framing the charges, and be- 
cause it is impossible to know whether this discretion would 
have been exercised differently by a properly selected grand 
jury. Ante, at 263. The point appears to be that an all- 
white grand jury from which blacks are systematically ex- 
cluded might be influenced by race in determining whether to 
indict and for what charge. Since the State may not im- 
prison respondent for a crime if one of its elements is his 
race, the argument goes, his conviction must be set aside. 

This reasoning ignores established principles of equal pro- 
tection jurisprudence. We have consistently declined to find 
a violation of the Equal Protection Clause absent a finding of 
intentional discrimination. Arlington Heights v. Metropoli- 
tan Housing Development Corp., 429 U. S. 252, 265 (1977); 
Washington v. Davis, 426 U. S. 229, 239 (1976). There has 
been no showing in this case indeed, respondent does not 
even allege that the Kings County grand jury indicted re- 
spondent because of his race, or that the grand jury declined 
to indict white suspects in the face of similarly strong evi- 
dence. 7 Nor is it sensible to assume that impermissible dis- 

7 Most criminal cases in Kings County were initiated by information 
rather than indictment. In the decade ending in 1962, Kings County 
grand juries indicted a total of only four persons, only one of whom -was 
black. People v. Hillery, 62 Cal. 2d 692, 710, 401 P. 2d 382, 393 (1965), 
cert, denied, 386 U. S. 938 (1967). In light of these facts, any claim that 
discriminatory selection of grand jurors was a mechanism for applying dif- 
ferent standards to black offenders than to their white counterparts seems 
altogether fanciful. 

Nor is there any direct evidence that the grand jury discriminated 
against respondent because of his race. The only discrimination in this 
case was directed not at respondent but at the black residents of Kings 
County, who were barred from serving on grand juries because of their 



276 OCTOBER TERM, 1985 

POWELL, J., dissenting 474 U. S. 

crimination might have occurred simply because the grand 
jury had no black members. This Court has never sug- 
gested that the racial composition of a grand jury gives rise 
to the inference that indictments are racially motivated, any 
more than it has suggested that a suspect arrested by a po- 
liceman of a different race may challenge his subsequent con- 
viction on that basis. 8 But the Court now holds that relief is 
justified in part because of the bare potential, unsupported 
by any evidence, that an all-white grand jury charged re- 
spondent because of his race. 

This justification does not square with the Court's previous 
decisions in this area; at the same time, it fails to explain the 
outcome of this case. In Castaneda v. Partida, 430 U. S. 
482 (1977), for example, the Court ordered a new trial for 
a Hispanic petitioner who was indicted by a grand jury half 
of whose members were Hispanic. Whatever value such a 
result might have, it cannot be justified on the ground that 
the grand jury indicted the petitioner because of his race. 
In this case, due to the small number of blacks in Kings 
County, a random selection system could well have resulted 
in a grand jury identical to the one that indicted respondent. 
A perfectly representative grand jury one whose compo- 
sition reflected the county's racial mix would have contained 
only one black member. Neither outcome would have justi- 
fied an inference that respondent had been charged because 
of his race. See Akins v. Texas, 325 U. S. 398, 403 (1945). 
Once the inference of racial bias in the decision to indict is 
placed to one side, as it must be under our precedents, it is 

race. There is nothing in the record to support a finding that the grand 
jurors themselves discriminated against anyone on the basis of race, or 
that they otherwise failed to discharge their duties properly. 

8 Instead, as the Court apparently acknowledges, a validly convicted 
criminal defendant must show that he was "deliberately charged ... on 
account of his race" in order to obtain reversal of the conviction. Ante, at 
264 (citing United States v. Batchelder, 442 U. S. 114, 125, and n. 9 
(1979)). Respondent has not even alleged, much less shown, any dis- 
crimination directed at him. See n. 7, supra. 



VASQUEZ u HILLERY 277 

254 POWELL, J., dissenting 

impossible to conclude that the discriminatory selection of 
Kings County's grand jurors caused respondent to suffer any 
cognizable injury. There may be a theoretical possibility 
that a different grand jury might have decided not to indict or 
to indict for a less serious charge. The fact remains, how- 
ever, that the grand jury's decision to indict was correct as a 
matter of law, given respondent's subsequent, unchallenged 
conviction. A defendant has no right to a grand jury that 
errs in his favor. At most, he has an interest in not being 
bound over for trial in the absence of any evidence of his 
guilt, see Costello v. United States, 350 U. S. 359, 364 (1956) 
(Burton, J., concurring), 9 or based on impermissible factors 
such as his race, see Oylerv. Boles, 368 U. S. 448, 456 (1962). 
There is no allegation that those rights were violated in this 
case. The Court's decision cannot, therefore, be justified as 
a means of redressing any wrong to respondent. 

(2) 

As respondent suffered no prejudice from the grand jury 
discrimination that prompted his claim, the Court's remedy 
must stand or fall on its utility as a deterrent to government 
officials who seek to exclude particular groups from grand 
juries, weighed against the cost that the remedy imposes on 
society. See United States v. Leon, 468 U. S., at 906-907. 
The Court properly emphasizes that grand jury discrimina- 
tion is "a grave constitutional trespass," ante, at 262, but it 
leaps from that observation to the conclusion that no matter 
when the claim is raised the appropriate response is to re- 
verse the conviction of one indicted by a discriminatorily se- 



9 1 do not intend to suggest that respondent could have obtained judicial 
review of the sufficiency of the evidence on which his indictment was 
based. See United States v. Calandra, 414 U. S. 338, 345 (1974) ("[A]n 
indictment valid on its face is not subject to challenge on the ground that 
the grand jury acted on the basis of inadequate or incompetent evidence"). 
I suggest only that, assuming such an attack were permitted, respondent 
could show no violation of any personal right in this case. 



278 OCTOBER TERM, 1985 

POWELL, J., dissenting 474 U. S. 

lected body. That conclusion is not, as the Court errone- 
ously suggests, compelled by precedent; equally important, it 
seriously disserves the public interest. 

The cases on which the Court relies involved relatively 
brief lapses of time between the defendant's trial and the 
granting of relief. This fact is unsurprising, since the Court 
only recently determined that claims of grand jury dis- 
crimination may be raised in federal habeas corpus proceed- 
ings. See Rose v. Mitchell, 443 U. S. 545 (1979). 10 Prior to 
1970, the Court's grand jury discrimination cases arose on di- 
rect appeal from conviction. In all of those cases, the time 
between the defendant's indictment and this Court's decision 
was six years or less. 11 Before today, the Court has twice 

10 In my separate opinion in Rose v. Mitchell, I took the position that, 
where a habeas petitioner is given a full opportunity to litigate his grand 
jury discrimination claim in state court, he should not be permitted to liti- 
gate the claim again on federal habeas corpus. 443 U. S. , at 579 (POWELL, 
J., concurring in judgment). I remain convinced that my conclusion was 
correct. Nor do I believe that in this case stare decisis weighs persua- 
sively against reexamining the question whether a defendant should be 
permitted to relitigate a claim that has no bearing on either his guilt or on 
the fairness of the trial that convicted him. Rose v. Mitchell, decided in 
1979, is the only case in which this Court has examined the issue, and 
Rose's authority is questionable. See n. 4, supra. 

JUSTICE O'CONNOR has some doubt as to whether respondent had a full 
and fair opportunity to litigate his grand jury discrimination claim in 
a state court. Ante, at 267 (O'CONNOR, J., concurring in judgment). Re- 
spondent concedes that he did in fact relitigate that claim in state habeas 
corpus proceedings, Brief for Respondent 3, and appealed the denial of 
relief to the California Supreme Court. Ibid. In my view, this afforded 
respondent an entirely adequate opportunity to litigate in state courts both 
the underlying discrimination claim and the subsidiary claim that Judge 
Wingrove was a biased adjudicator. 

It is unnecessary actually to decide the issue in this case, for I conclude 
that the judgment should be reversed on two other grounds: the harmless- 
ness of the error, and the inappropriateness of the Court's remedy in cases 
in which the discrimination claim is raised so long after the claimant's con- 
viction that retrial is difficult if not impossible. 

"The longest time lapse occurred in Strauder v. West V^rg^nia, 100 
U. S. 303 (1880). In Strauder, the defendant was indicted in October 
1874; this Court's decision was rendered in March 1880. 



VASQUEZ v. HILLERY 279 

254 POWELL, J., dissenting 

granted relief to habeas corpus petitioners alleging grand 
jury discrimination. Both cases involved delays compara- 
ble to the delay reflected in the cases that arose on direct ap- 
peal. See Castaneda v. Partida, 430 U. S. 482 (1977) (deci- 
sion announced five years after indictment); Peters v. Kiff, 
407 U. S. 493 (1972) (decision announced six years after 
indictment). 

This case raises the open question whether relief should be 
denied where the discrimination claim is pressed many years 
after conviction, and where the State can show that the delay 
prejudiced its ability to retry the defendant. 12 Respondent 
first raised his grand jury discrimination claim before a fed- 
eral court 16 years after his conviction. 13 It is now almost a 
quarter-century since respondent was tried for murder and 
since the discrimination occurred. The Court finds this time 
lapse irrelevant. In my view, it is critically important, be- 
cause it both increases the societal cost of the Court's chosen 



12 The Court has decided only two cases in which the State might have 
argued that a long delay in raising a grand jury discrimination claim preju- 
diced the State's ability to retry the defendant. In both instances, the 
Court denied relief on other grounds. Francis v. Henderson, 425 U. S. 
536 (1976) (petitioner raised grand jury discrimination claim seven years 
after conviction; Court denied relief on exhaustion grounds); Tollett v. 
Henderson, 411 U. S. 258 (1973) (petitioner raised grand jury claim 21 
years after conviction; Court held that claim was foreclosed because peti- 
tioner had pleaded guilty pursuant to competent legal advice). 

13 The reason for this delay is irrelevant, unless bad faith on the State's 
part can be shown. Because respondent suffered no injury from Kings 
County's discriminatory selection of grand juries, he cannot fairly complain 
if he is required to raise his claim promptly in order to secure a windfall. 

Moreover, respondent does not appear to have been blameless for the 
long delay. The California Supreme Court finally rejected respondent's 
grand jury discrimination claim in 1965. Respondent next raised the claim 
in 1974, when he sought postconviction relief in state court. During the 
intervening nine years, respondent raised repeated challenges ultimately 
successfully to his death sentence. There is no apparent reason why 
respondent could not simultaneously have sought postconviction relief on 
the grand jury discrimination claim, which if successful would require a 
new trial on guilt. 



280 OCTOBER TERM, 1985 

POWELL, J., dissenting 474 U. S. 

remedy and lessens any deterrent force the remedy may 
otherwise have. 

In Rose v. Mitchell, supra, the Court reasoned that the 
rule of automatic reversal imposes limited costs on society, 
since the State is able to retry successful petitioners, and 
since "the State remains free to use all the proof it introduced 
to obtain the conviction in the first trial." Id. , at 558. This 
is not the case when relief is granted many years after the 
original conviction. In those circumstances, the State may 
find itself severely handicapped in its ability to carry its 
heavy burden of proving guilt beyond a reasonable doubt. 
Where the original verdict turned on the jury's credibility 
judgments, long delays effectively eliminate the State's abil- 
ity to reconstruct its case. Even where credibility is not 
central, the passage of time may make the right to retry the 
defendant "a matter of theory only." Friendly, Is Innocence 
Irrelevant? Collateral Attack on Criminal Judgments, 38 U. 
Chi. L. Rev. 142, 147 (1970). Witnesses die or move away; 
physical evidence is lost; memories fade. For these reasons, 
the Court has noted that "'[tjhe greater the lapse of time, the 
more unlikely it becomes that the state could reprosecute if 
retrials are held to be necessary.'" Peyton v. Rowe, 391 
U. S. 54, 62 (1968) (citation omitted). 14 

Long delays also dilute the effectiveness of the reversal 
rule as a deterrent. This case is illustrative. The architect 
of the discriminatory selection system that led to respond- 
ent's claim, Judge Wingrove, died 19 years ago. Respond- 

14 Under the Court's approach, one in respondent's position may be wise 
to wait to raise his discrimination claim until the State could no longer 
reconvict him due to the death or disappearance of witnesses or the loss of 
physical evidence. In effect, this strategy could permit a prisoner to com- 
mute a legally imposed sentence of life or long duration. This is a risk so- 
ciety should tolerate where the claim goes to the petitioner's guilt or inno- 
cence, or even where the claim seeks otherwise to redress a wrong done to 
the petitioner. But there is no reason to tolerate this risk where, as here, 
the claimant was fairly convicted and has suffered no prejudice from the 
asserted constitutional error. 



VASQUEZ v. KILLER Y 281 

254 POWELL, J., dissenting 

ent does not allege that the discriminatory practices survived 
Judge Wingrove, nor is there any evidence in the record to 
support such an allegation. It is hard to believe that Judge 
Wingrove might have behaved differently had he known that 
a convicted defendant might be freed 19 years after his 
death. Yet that is exactly the proposition that must justify 
the remedy imposed in this case: that people in positions simi- 
lar to Judge Wingrove's will change their behavior out of the 
fear of successful habeas petitions long after they have left 
office or otherwise passed from the scene. The proposition, 
to say the least, is highly questionable. 

These concerns require that a different balance be struck 
in a case such as this one than in cases in which the grand 
jury discrimination claim is adjudicated only a short time 
after the petitioner's conviction. At the very least, the 
Court should focus directly on the aspect of delay that in- 
creases the costliness of its remedy by allowing the State to 
show that it would be substantially prejudiced in its ability to 
retry respondent. 15 If this showing were made, respondent's 



15 The Court suggests that Rule 9(a) of the Habeas Corpus Rules, to- 
gether with congressional inaction, "counsels against" considering preju- 
dice to the State's ability to retry respondent in this case. Ante, at 265. 
This suggestion is erroneous. Rule 9 permits the State to defend against 
both repetitious habeas petitions, see Woodard v. Hutchins, 464 U. S. 377, 
379 (1984) (POWELL, J., joined by BURGER, C. J., and BLACKMUN, REHN- 
QUIST, and O'CONNOR, JJ,, concurring), and petitions to which the State 
cannot adequately respond due to the petitioner's delay in filing, e. g., 
Mayola v. Alabama, 623 F. 2d 992, 999-1000 (CAS 1980), cert, denied, 451 
U. S. 913 (1981). The Rule does not by its terms foreclose other consider- 
ation of the lapse of time between the petitioner's conviction and the filing 
of the habeas petition. Honeycutt v. Ward, 612 F. 2d 36, 43 (CA2 1979) 
(Friendly, J., concurring in judgment), cert, denied, 446 U. S. 985 (1980). 
More important, it is a rule of habeas corpus procedure applicable to ha- 
beas petitions generally, and does not purport to be a rule of substantive 
law that defines particular substantive claims for relief. Congress' deci- 
sion not to amend it therefore says nothing about Congress' intent with re- 
gard to the remedy applied here. In sum, the question whether the relief 
respondent seeks is "appropriate" in this case, Hobby v. Umted States, 468 



282 OCTOBER TERM, 1985 

POWELL, J., dissenting 474 U. S. 

petition for relief should be denied. Such an approach would 
also identify those cases in which granting habeas relief could 
be expected to have the least deterrent value: the State will 
likely suffer the greatest prejudice in cases of long delay, and 
those are the cases in which the automatic reversal rule is 
least likely to alter the behavior of discriminatory officials. 
This approach would leave the rule that the Court defends in- 
tact in precisely those cases where it does the most good and 
the least harm: cases in which the responsible officials are 
likely to be accountable for forcing the State to again prove 
its case, and in which retrial and reconviction are plausible 
possibilities. 

Ill 

Twenty-three years ago, respondent was fairly convicted 
of the most serious of crimes. Respondent's grand jury dis- 
crimination claim casts no doubt on the adequacy of the pro- 
cedures used to convict him or on the sufficiency of the evi- 
dence of his guilt. For that reason alone, the Court should 
reverse the Court of Appeals' decision. 16 Even assuming the 

U. S. 339, 342 (1984), is governed neither by Rule 9 nor by Congress' deci- 
sions not to amend that Rule. See Stone v. Powell, 428 U. S. 465, 474-482 
(1976) (discussing relationship between habeas corpus statute and the rule 
that evidence seized in violation of the Fourth Amendment is inadmissi- 
ble). As the Court stated in Fay v. Noia, 372 U. S. 391, 438 (1963): 
"[W]e recognize a limited discretion in the federal judge to deny [habeas 
corpus] relief to an applicant under certain circumstances. Discretion is 
implicit in the statutory command that the judge, after granting the writ 
and holding a hearing of appropriate scope, 'dispose of the matter as law 
and justice require,' 28 U. S. C. 2243; and discretion was the flexible con- 
cept employed by the federal courts in developing the exhaustion rule. 
Furthermore, habeas corpus has traditionally been regarded as governed 
by equitable principles." 

See also Stone v. Powell, supra, at 478, n. 11. Those "equitable princi- 
ples" cannot, in my view, require that the Court apply a remedy that is not 
constitutionally compelled beyond the bounds of justice and good sense. 
16 Confidence in our system of justice is eroded when one found guilty of 
murder, in a trial conceded to be fair, is set free. It is important to re- 
member that the criminal law's aim is twofold: "that guilt shall not escape 



VASQUEZ v. HILLEKY 283 

254 POWELL, J., dissenting 

harmlessness of the error is irrelevant, however, reversal is 
still required. The Court inappropriately applies a deter- 
rence rule in a context where it is unlikely to deter, and 
where its costs to society are likely to be especially high. 
These considerations should at least lead the Court to 
remand for a determination of whether the long lapse of time 
since respondent's conviction would prejudice the State's 
ability to retry respondent. 

The Court follows neither of these paths, but instead 
affirms a decision that will likely mean that respondent must 
be freed for no good purpose. This result is not compelled 
by precedent. But if it were, its consequences would justify 
reconsidering those decisions thought to require it. I there- 
fore dissent. 



or innocence suffer." Berger v. United States, 295 U. S. 78, 88 (1935); see 
also United States v. Agurs, 427 U. S. 97, 112 (1976). The Court's deci- 
sion in this case plainly undermines the State's interest in punishing the 
guilty, without either protecting the innocent or ensuring the fundamental 
fairness of the procedures pursuant to which one such as respondent is 
tried and convicted. 



284 OCTOBER TERM, 1985 

Syllabus 474 U. S. 



WAINWRIGHT, SECRETARY, FLORIDA DEPART- 
MENT OF CORRECTIONS v. GREENFIELD 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 
THE ELEVENTH CIRCUIT 

No. 84-1480. Argued November 13, 1985 Decided January 14, 1986 

On three occasions shortly after his arrest in Florida for sexual battery, 
respondent was given Miranda warnings, and in each instance he exer- 
cised his right to remain silent and stated that he wished to speak with 
an attorney before answering any questions. Respondent later pleaded 
not guilty by reason of insanity, and in the closing arguments in the 
Florida trial court, the prosecutor, over defense counsel's objection, 
reviewed police officer testimony as to the occasions on which respond- 
ent had exercised his right to remain silent, and suggested that respond- 
ent's repeated refusals to answer questions without first consulting an 
attorney demonstrated a degree of comprehension that was inconsistent 
with his claim of insanity. Respondent's subsequent conviction was af- 
firmed by the Florida Court of Appeal, which held that the general rule 
precluding prosecutorial comment as to a defendant's exercise of his 
right to remain silent did not apply to a case in which an insanity plea 
was filed. Respondent then unsuccessfully sought habeas corpus relief 
in Federal District Court, but the Court of Appeals reversed, holding 
that under the reasoning of Doyle v. Ohio, 426 U. S. 610, respondent 
was entitled to a new trial. 

Held: The prosecutor's use of respondent's postarrest, post-Miranda 
warnings silence as evidence of sanity violated the Due Process Clause of 
the Fourteenth Amendment. Pp. 289-295. 

(a) In Doyle, supra, it was held that the prosecutor's impeachment 
of the defendants' exculpatory testimony by asking them on cross- 
examination why they had not explained their conduct at the time 
of their arrest was fundamentally unfair and therefore violated the 
Due Process Clause. The source of the unfairness was the implicit 
assurance contained in Miranda warnings that silence will carry no 
penalty. Pp. 289-291. 

(b) There is no merit to the argument that Doyle does not control this 
case because proof of sanity is significantly different from proof of the 
commission of the underlying offense. The point of the Doyle holding is 
that it is fundamentally unfair to promise an arrested person that his si- 
lence will not be used against him and thereafter to breach that promise 
by using the silence to impeach his trial testimony. It is equally unfair 



WAINWRIGHT v. GREENFIELD 285 

284 Opinion of the Court 

to breach that promise by using silence to overcome a defendant's plea 
of insanity. South Dakota v. Neville, 459 U. S. 553, distinguished. 
Pp. 292-293. 

(c) The argument that Doyle should not control this case because a 
suspect's comprehension of Miranda warnings, as evidenced by his si- 
lence, is far more probative of sanity than of commission of the underly- 
ing offense, is also unpersuasive. Such argument fails to meet the prob- 
lem of fundamental unfairness that flows from the State's breach of its 
implied assurances. Pp. 293294. 

(d) A State's legitimate interest in proving that the defendant's be- 
havior appeared to be rational at the time of his arrest can be served by 
carefully framed questions that avoid any mention of the defendant's ex- 
ercise of his constitutional rights to remain silent and to consult counsel. 
Pp. 294-295. 

741 F. 2d 329, affirmed. 

STEVENS, J., delivered the opinion of the Court, in which BRENNAN, 
WHITE, MARSHALL, BLACKMUN, POWELL, and O'CONNOR, JJ., joined. 
REHNQUIST, J. , filed an opinion concurring in the result, in which BURGER, 
C. J., joined, post, p. 296. 

Ann Garrison Paschall, Assistant Attorney General of 
Florida, argued the cause for petitioner. With her on the 
briefs was Jim Smith, Attorney General. 

James D. Whittemore, by appointment of the Court, 472 
U. S. 1006, argued the cause and filed a brief for 
respondent. * 

JUSTICE STEVENS delivered the opinion of the Court. 

Respondent entered a plea of not guilty by reason of insan- 
ity to a charge of sexual battery. At his trial in the Circuit 
Court for Sarasota County, Florida, the prosecutor argued 
that respondent's silence after receiving Miranda warnings 
was evidence of his sanity. The question presented is 
whether such use of a defendant's silence violates the Due 
Process Clause of the Fourteenth Amendment as construed 
in Doyle v. Ohio, 426 U. S. 610 (1976). 

*Briefs of amici cunae urging affirmance were filed for the American 
Civil Liberties Union by Charles S Sims and Jack D. Novik; and for the 
Illinois Psychological Association by Donald Paull and Marilyn Martin. 



286 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 



The battery occurred in woods near a beach in the vicinity 
of Sarasota, Florida. After respondent released his victim, 
she drove directly to the police station to report the incident. 
Based on her description, Officer Pilifant identified respond- 
ent on the beach and placed him under arrest about two hours 
after the assault occurred. After handcuffing him, the offi- 
cer gave respondent the warnings required by our decision in 
Miranda v. Arizona, 384 U. S. 436, 467-473 (1966). Specifi- 
cally, Officer Pilifant stated: 

'"You have a right to remain silent. Anything you say 
can and will be used against you in a court of law. You 
have the right to talk to a lawyer and have him present 
with you while you are being questioned. If you cannot 
afford to hire a lawyer one will be appointed to represent 
you before any questioning if you wish. You can decide 
at any time to exercise these rights and not answer any 
questions or make any statements. Do you understand 
each of these rights I have explained to you? Having 
these rights in mind do you wish to talk to us now?" 
App. 73. 

Respondent replied by stating that he understood his 
rights and that he wanted to talk to an attorney before mak- 
ing any statement. The Miranda warnings were repeated 
by Officer Pilifant while driving to the police station and reit- 
erated by Detective Jolley after they arrived at the station. 
Each time that respondent was asked "if he wished to give 
up the right to remain silent," he declined, stating that he 
wanted to talk to an attorney. App. 77. 

Under Florida law, when a defendant pleads not guilty by 
reason of insanity and when his evidence is sufficient to raise 
a reasonable doubt about his sanity, the State has the burden 
of proving sanity beyond a reasonable doubt. 1 In his case in 

1 See Farrell v. State, 101 So. 2d 130, 133 (Fla. 1958) ("when there is 
testimony of insanity sufficient to present a reasonable doubt of sanity the 
presumption [of sanity] vanishes. The defendant is then entitled to an 



WAINWRIGHT v. GREENFIELD 287 

284 Opinion of the Court 

chief, the prosecutor introduced the testimony of Officer 
Pilifant and Detective Jolley. They described the occasions 
on which respondent had exercised his right to remain silent 
and had expressed a desire to consult counsel before answer- 
ing any questions. Both officers repeated the several collo- 
quies with respondent. In his defense, respondent did not 
testify, but two psychiatrists expressed the opinion that he 
was a paranoid schizophrenic who had been unable to distin- 
guish right from wrong at the time of the alleged offense. In 
rebuttal, the prosecutor relied on a third psychiatrist who 
expressed a contrary opinion. 

In his closing argument, over defense counsel's objection, 
the prosecutor reviewed the testimony of Officer Pilifant and 
Detective Jolley and suggested that respondent's repeated 
refusals to answer questions without first consulting an attor- 
ney demonstrated a degree of comprehension that was incon- 
sistent with his claim of insanity. 2 The jury found respond- 
ent guilty and the judge sentenced him to life imprisonment. 



acquittal if the state does not overcome the reasonable doubt"), cited in 
Greenfield v. State, 337 So. 2d 1021, 1023, n. 2 (Fla. App. 1976). 

2 He argued, in part: 

"He goes to the car and the officer reads him his Miranda rights. Does he 
say he doesn't understand them? Does he say 'what's going on?' No. 
He says 'I understand my rights. I do not want to speak to you. I want 
to speak to an attorney. ' Again an occasion of a person who knows what's 
going on around his surroundings, and knows the consequences of his act. 
Even down as going down [to] the car as you recollect Officer Pil[i]fant 
said he explained what Miranda rights meant and the guy said and Mr. 
Greenfield said 'I appreciate that, thanks a lot for telling me that.' And 
here we are to believe that this person didn't know what he was doing at 
the time of the act, and then even down at the station, according to De- 
tective Jolley He's down there. He says, 'Have you been read your 
Miranda rights?' 'Yes, I have.' 'Do you want to talk?* 'No.' 'Do you 
want to talk to an attorney?' 'Yes.' And after he talked to the attorney 
again he will not speak. Again another physical overt indication by the 
defendant .... 

[Footnote 2 ^s continued on p. 288 J 



288 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

By a 2-to-l vote, the Florida Court of Appeal for the Sec- 
ond District affirmed the conviction. Greenfield v. State, 
337 So, 2d 1021 (1976). After noting that "prosecutorial 
comment relating to a defendant's insistence on his right to 
remain silent generally constitutes reversible error," id., at 
1022, the majority held that the general rule did not apply to 
a case in which an insanity plea had been filed. The dissent- 
ing judge suggested that the application of the general rule 
would not have prejudiced the prosecution because the "ques- 
tions and answers could have been couched in such a manner 
as to permit the officer to convey to the jury the fact that the 
appellant carried on a perfectly rational conversation without 
specifically stating that he chose to avail himself of his right 
to remain silent." Id., at 1023. 

The Florida Supreme Court granted respondent's petition 
for certiorari and summarily remanded the case to the Court 
of Appeal for reconsideration in light of Clark v. State, 363 
So. 2d 331 (1978), a case in which it had held that improper 
comment on a defendant's silence was constitutional error 
re viewable on appeal if an adequate contemporaneous objec- 
tion was made either at the time the evidence was introduced 
or at the time of the prosecutor's comment. Greenfield v. 
State, 364 So. 2d 885 (1978). On reconsideration, the Court 
of Appeal adhered to its earlier decision. 

Having exhausted his state remedies, respondent filed a 
petition for a writ of habeas corpus in the Federal District 
Court. The petition was referred to a Magistrate. The 
State argued that the silence issue was barred because 
respondent's counsel had failed to make an adequate ob- 
jection. The Magistrate concluded that federal review of 
the claim was not foreclosed because counsel had objected to 
the prosecutor's closing argument and because the Florida 
Court of Appeal had rejected the claim on its merits. The 



"So here again we must take this in consideration as to his guilt or inno- 
cence, in regards to sanity or insanity." App. 96-98. 



WAINWRIGHT v. GREENFIELD 289 

284 Opinion of the Court 

Magistrate, however, agreed with the Florida courts' dispo- 
sition of the merits and recommended that the habeas corpus 
petition be denied. The District Court accepted that 
recommendation. 3 

The United States Court of Appeals for the Eleventh 
Circuit reversed. 741 F. 2d 329 (1984). Disagreeing with 
two other Federal Courts of Appeals 4 but not with the po- 
sition taken by the Florida Supreme Court in a case decided 
after this respondent had exhausted his state remedies, see 
State v. Burwick, 442 So. 2d 944 (1983), cert, denied, 466 
U. S. 931 (1984) the Court of Appeals held that under the 
reasoning of Doyle v. Ohio, 426 U. S. 610 (1976), respondent 
was entitled to a new trial. We agree. 

II 

In Doyle, the defendants had taken the witness stand and 
offered an exculpatory explanation for their participation in 
what the State's evidence had portrayed as a routine mari- 
huana transaction. On cross-examination the prosecutor im- 
peached their testimony by asking them why they had not ex- 
plained their conduct at the time of their arrest. The Court 
held that such cross-examination was fundamentally unfair 

3 The Florida Attorney General did not object to the Magistrate's con- 
clusion that the Florida Court of Appeal had rejected respondent's claim on 
its merits. In his petition for rehearing in the United States Court of 
Appeals for the Eleventh Circuit, the Attorney General renewed the argu- 
ment that the postarrest, post-Miranda warnings silence issue was barred 
by Wainwright v. Sykes, 433 U. S. 72 (1977). He advances the same argu- 
ment in this Court. However, as the Magistrate concluded, the Florida 
appellate court clearly addressed the issue on the merits. Thus, we must 
reject the Attorney General's argument. See Ulster County Court v. 
Allen, 442 U. S. 140, 149 (1979); Mullaney v. Wilbur, 421 U. S. 684, 704, 
n. (1975) (REHNQUIST, J., concurring). Cf. Franks v. Delaware, 438 
U. S. 154, 161-162 (1978); Raley v. Ohio, 360 U. S. 423, 436-437 (1959); 
Manhattan Life Insurance Co v. Cohen, 234 U. S. 123, 134 (1914). 

4 See Sulie v. Duckworth, 689 F. 2d 128 (CA7 1982), cert, denied, 460 
U. S. 1043 (1983); United States v. Trujillo, 578 F. 2d 285 (CA10), cert, 
denied, 439 U. S. 858 (1978). 



290 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

and therefore violated the Due Process Clause of the Four- 
teenth Amendment. 

The source of the unfairness was the implicit assurance 
contained in the Miranda warnings "that silence will carry no 
penalty." 5 The critical importance of the implied promise 
that is conveyed to an arrested person by the Miranda warn- 
ings has been repeatedly confirmed in subsequent decisions. 
Thus, in Fletcher v. Weir, 455 U. S. 603, 606 (1982), we 
explained: 

"In Jenkins [v. Anderson, 447 U. S. 231 (1980)], as in 
other post-Doyle cases, we have consistently explained 
Doyle as a case where the government had induced si- 
lence by implicitly assuring the defendant that his silence 
would not be used against him. In Roberts v. United 
States, 445 U. S. 552, 561 (1980), we observed that the 

6 "Moreover, while it is true that the Miranda warnings contain no 
express assurance that silence will carry no penalty, such assurance is 
implicit to any person who receives the warnings. In such circumstances, 
it would be fundamentally unfair and a deprivation of due process to allow 
the arrested person's silence to be used to impeach an explanation subse- 
quently offered at trial. MR. JUSTICE WHITE, concurring in the judgment 
in United States v. Hale, [422 U. S.], at 182-183, put it very well: 

" *[W]hen a person under arrest is informed, as Miranda requires, that 

he may remain silent, that anything he says may be used against him, and 

that he may have an attorney if he wishes, it seems to me that it does not 

comport with due process to permit the prosecution during the trial to call 

attention to his silence at the time of arrest and to insist that because he 

did not speak about the facts of the case at that time, as he was told he 

need not do, an unfavorable inference might be drawn as to the truth of his 

trial testimony. . . . Surely Hale was not informed here that his silence, as 

well as his words, could be used against him at trial. Indeed, anyone 

would reasonably conclude from Miranda warnings that this would not be 

the case/" Doyle v. Ohio, 426 U. S., at 618-619 (footnotes omitted). 

In United States v. Hale, 422 U. S. 171 (1975), the Court had held that 

the use of postarrest, post-Miranda warnings silence was impermissible in 

federal prosecutions. The Court based its holding on its supervisory 

power in federal proceedings and left open the constitutional question. 

JUSTICE WHITE'S concurrence argued that the use violated due process, 

and it was that view the Court adopted in Doyle. 



WAINWRIGHT v. GREENFIELD 291 

284 Opinion of the Court 

postconviction, presentencing silence of the defendant 
did not resemble "postarrest silence that may be induced 
by the assurances contained in Miranda warnings/ In 
Jenkins, we noted that the failure to speak involved in 
that case occurred before the defendant was taken into 
custody and was given his Miranda warnings, comment- 
ing that no governmental action induced the defendant to 
remain silent before his arrest. 447 U. S., at 239-240. 
Finally, in Anderson v. Charles, 447 U. S. 404, 407-408 
(1980), we explained that use of silence for impeachment 
was fundamentally unfair in Doyle because 'Miranda 
warnings inform a person of his right to remain silent 
and assure him, at least implicitly, that his silence will 
not be used against him. . . . Doyle bars the use against a 
criminal defendant of silence maintained after receipt of 
governmental assurances/" 

Since Fletcher, moreover, we have continued to reiterate 
our view that Doyle rests on "the fundamental unfairness of 
implicitly assuring a suspect that his silence will not be used 
against him and then using his silence to impeach an explana- 
tion subsequently offered at trial." South Dakota v. Neville, 
459 U. S. 553, 565 (1983). 6 Doyle and subsequent cases 
have thus made clear that breaching the implied assurance of 
the Miranda warnings is an affront to the fundamental fair- 
ness that the Due Process Clause requires. 7 

6 That this "fundamental unfairness" derives from the implicit as- 
surances of the Miranda warnings is supported by our holdings that due 
process is not violated by the impeachment use of pice-Miranda warnings 
silence, either before arrest, Jenkins v. Anderson, 447 U. S. 231 (1980), or 
after arrest, Fletcher v. Weir, 455 U. S. 603 (1982), or of post-Miranda 
warnings statements, Anderson v. Charles, 447 U. S. 404 (1980); nor is it 
violated by the use of a refusal to take a state test that does not involve 
Miranda-like warnings, Neville. 

7 Notably, the Court in Doyle did not rely on the contention that Ohio 
had violated the defendants' Fifth Amendment privilege against self- 
incrimination by asking the jury to draw an inference of guilt from the 
exercise of their constitutional right to remain silent. Cf. Griffin v. Call- 



292 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

The Florida Attorney General argues that Doyle does not 
control this case because proof of sanity is significantly differ- 
ent from proof of the commission of the underlying offense, 
and that the Doyle due process rationale thus does not apply. 
At the outset, we note that, in this case, unlike Doyle and its 
progeny, the silence was used as affirmative proof in the case 
in chief, not as impeachment. 8 The Florida Attorney Gen- 
eral argues that an insanity defense should be viewed as an 
"affirmative defense," and that the use of silence to overcome 
an insanity defense should thus be viewed as impeachment. 
Without accepting that argument, or its characterization of 
the insanity defense, 9 we address the claim that the Doyle 
due process analysis should not prevent the use of post- 
Miranda warnings silence to overcome an insanity defense. 
We find no warrant for the claimed distinction in the rea- 
soning of Doyle and of subsequent cases. The point of the 
Doyle holding is that it is fundamentally unfair to promise an 
arrested person that his silence will not be used against him 
and thereafter to breach that promise by using the silence to 
impeach his trial testimony. It is equally unfair to breach 
that promise by using silence to overcome a defendant's plea 
of insanity. In both situations, the State gives warnings to 
protect constitutional rights and implicitly promises that any 
exercise of those rights will not be penalized. In both situa- 
tions, the State then seeks to make use of the defendant's 
exercise of those rights in obtaining his conviction. The 
implicit promise, the breach, and the consequent penalty 
are identical in both situations. 



fornia, 380 U. S. 609 (1965) (Fifth Amendment prohibits prosecutorial 
comment on defendant's refusal to testify). 

8 The constitutional violation might thus be especially egregious be- 
cause, unlike Doyle, there was no risk "that exclusion of the evidence 
[would] merely provide a shield for perjury." 426 U. S. , at 626 (STEVENS, 
J., dissenting). 

9 Cf. n. 1, supra. 



WAINWRIGHT v. GREENFIELD 293 

284 Opinion of the Court 

The Florida Attorney General argues, however, that intro- 
duction of the evidence of respondent's post-Miranda warn- 
ings silence no more violates the Constitution than did the 
reference to a defendant's refusal to take a blood-alcohol test 
in South Dakota v. Neville, supra. In Neville, we rejected 
the due process challenge and the attempt to rely on 
Doyle because of the important differences between the 
refusal to take a blood-alcohol test and the post-Miranda 
warnings silence. We noted that, unlike the refusal to take 
an optional blood-alcohol test, the right of silence after 
Miranda warnings is of constitutional dimension. 459 U. S. , 
at 565. We also noted that, unlike the state warning about 
the refusal to take the blood-alcohol test (which expressly 
advised Neville that his refusal could be used to deprive him 
of his driving privileges), Miranda warnings contain implied 
assurances that silence will not be used against the suspect. 
459 U. S., at 565-566. Both Doyle elements the constitu- 
tional dimension and the implied assurance are equally 
present when post-Miranda warnings silence is used to prove 
sanity. Unlike Neville, therefore, and like Doyle, Green- 
field received "the sort of implicit promise to forgo use of 
evidence that would unfairly 'trick' [him] if the evidence were 
later offered against him at trial." 459 U. S., at 566. 10 

The Florida Attorney General further contends that a sus- 
pect's comprehension of Miranda warnings, as evidenced by 
his silence, is far more probative of sanity than of commission 
of the underlying offense. He therefore argues that the reli- 
ance on the "insolubly ambiguous" character of the post- 
Miranda warnings silence in the Doyle opinion, 426 U. S., at 
617, is inappropriate in the context of an insanity defense. 
We need not evaluate the probative value of respondent's si- 



10 To the extent that the Attorney General seeks to rely on Neville's 
Fifth Amendment holding, his argument is inapposite because the Doyle 
analysis rests on the Due Process Clause, not the Fifth Amendment. 



294 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

lence to reject this argument. 11 For the ambiguity of the de- 
fendants' silence in Doyle merely added weight to the Court's 
principal rationale, which rested on the implied assurance 
contained in the Miranda warning. See South Dakota v. 
Neville, 459 U. S., at 564-565; Jenkins v. Anderson, 447 
U. S. 231, 239-240 (1980). u The Attorney General's argu- 
ment about the probative value of silence therefore fails en- 
tirely to meet the problem of fundamental unfairness that 
flows from the State's breach of its implied assurances. 

Finally, the Florida Attorney General argues that it is vi- 
tally important to be able to present evidence of a defendant's 
sanity at the time of the offense and shortly thereafter. 



11 We note, however, that the Florida Supreme Court does not share the 
Florida Attorney General's view about the probative value of silence in 
an insanity context. As the Florida court wrote in State v. Burwick, 442 
So. 2d 944, 948 (1983): 

"Post-arrest, post-Miranda silence is deemed to have dubious probative 
value by reason of the many and ambiguous explanations for such silence. 
422 U. S. at 180 .... Contrary to what Greenfield intimates, these ambi- 
guities attendant to -post-Miranda silence do not suddenly disappear when 
an arrestee's mental condition is brought into issue. The same evidentiary 
problems addressed by the Supreme Court in Hale are present in the case 
before us. For example, one could reasonably conclude that custodial in- 
terrogation might intimidate a mentally unstable person to silence. Like- 
wise, an emotionally disturbed person could be reasonably thought to rely 
on the assurances given during a Miranda warning and thereafter choose 
to remain silent. In sum, just what induces post-arrest, post-Miranda si- 
lence remains as much a mystery today as it did at the time of the Hale 
decision. Silence in the face of accusation is an enigma and should not be 
determinative of one's mental condition just as it is not determinative of 
one's guilt. Accordingly, the state should not be permitted to confirm 
Burwick's mental state with evidence of his post- Miranda silence." 

12 Several commentators have also emphasized that, particularly in light 
of later cases, Doyle's probativeness rationale is secondary to its implied 
assurance rationale. See, e. g., Note, Protecting Doyle Rights After 
Anderson v. Charles: The Problem of Partial Silence, 69 Va. L. Rev. 155, 
165, n. 56 (1983); Clark, Impeachment With Post-Arrest Silence: The 
Emergence of a "New Federalism" Approach, 19 Am. Crim. L. Rev. 751, 
759 (1982); The Supreme Court, 1979 Term, 94 Harv. L. Rev. 77, 84-85 
(1980). 



WAINWRIGHT u GREENFIELD 295 

284 Opinion of the Court 

However, as the dissenting judge in the Florida Court of Ap- 
peal recognized in this very case, the State's legitimate inter- 
est in proving that the defendant's behavior appeared to be 
rational at the time of his arrest could have been served by 
carefully framed questions that avoided any mention of the 
defendant's exercise of his constitutional rights to remain 
silent and to consult counsel. 13 What is impermissible is the 
evidentiary use of an individual's exercise of his constitu- 
tional rights after the State's assurance that the invocation of 
those rights will not be penalized. 

In Doyle, we held that Miranda warnings contain an im- 
plied promise, rooted in the Constitution, that "silence will 
carry no penalty." 426 U. S., at 618. Our conclusion that it 
was fundamentally unfair for the Ohio prosecutor to breach 
that promise by using the defendants' postarrest, post- 
Miranda warnings silence to impeach their trial testimony 
requires us also to conclude that it was fundamentally unfair 
for the Florida prosecutor to breach the officers' promise to 
respondent by using his postarrest, post-Miranda warnings 
silence as evidence of his sanity. 14 

The judgment of the Court of Appeals is affirmed. 

It is so ordered. 



13 In his petition and brief, the Attorney General has not contested the 
Eleventh Circuit's view that the prosecutor ial comment was directed at the 
"defendant's post- Miranda warning silence," 741 F. 2d 329, 333 (1984), or 
its conclusion that this comment, if erroneous, was not harmless, id., at 
336. Nor has respondent contested the point that a prosecutor may legiti- 
mately inquire into and comment upon "purely 'demeanor' or 'behavior' evi- 
dence." Brief for Respondent 14. With respect to post-Miranda warn- 
ings "silence," we point out that silence does not mean only muteness; it 
includes the statement of a desire to remain silent, as well as of a desire to 
remain silent until an attorney has been consulted. 

14 This conclusion is supported by a number of state decisions, in addition 
to that of Florida. See Commonwealth v. Mahdi, 388 Mass. 679, 448 
N. E. 2d 704 (1983); People v. Vanda, 111 111. App. 3d 551, 444 N. E. 2d 
609 (1982), cert, denied, 464 U. S. 841 (1983); People v. Schindler, 114 Cal. 
App. 3d 178, 170 Cal. Rptr. 461 (1980). 



296 OCTOBER TERM, 1985 

REHNQUIST, J., concurring in result 474 U. S. 

JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE 
joins, concurring in the result. 

I agree with the Court that our opinion in Doyle v. Ohio, 
426 U. S. 610 (1976), shields from comment by a prosecutor a 
defendant's silence after receiving Miranda warnings, even 
though the comment be addressed to the defendant's claim of 
insanity. I write separately, however, to point out that it 
does not follow from this that the Court of Appeals, which 
took the same position, reached the correct result. That 
court expanded Doyle to cover not merely silence, but re- 
quests for counsel, and ignored the fact that the evidence 
upon which the prosecutor commented had been admitted 
without objection. Analyzed in these terms, the Court of 
Appeals' conclusion that the "error" was not harmless is sus- 
pect: The portion of the prosecutor's closing statement that 
the Court of Appeals held amounted to constitutional error 
was in large part unobjectionable from a constitutional point 
of view, and the officer's testimony relating to silence was al- 
ready before the jury, without objection. I concur in the re- 
sult reached today because one of the prosecutor's comments, 
however brief, was an improper comment on respondent's 
silence, and the State does not argue here that any error 
was harmless beyond a reasonable doubt. 
In Doyle, the Court said: 

"The warnings mandated by [Miranda] . . . require that 
a person taken into custody be advised immediately that 
he has the right to remain silent, that anything he says 
may be used against him, and that he has a right to re- 
tained or appointed counsel before submitting to interro- 
gation. Silence in the wake of these warnings may be 
nothing more than the arrestee's exercise of these 
Miranda rights. Thus, every post-arrest silence is in- 
solubly ambiguous because of what the State is required 
to advise the person arrested. . . . Moreover, while it is 
true that the Miranda warnings contain no express as- 
surance that silence will carry no penalty, such assur- 



WAINWRIGHT u GREENFIELD 297 

284 REHNQUIST, J. , concurring in result 

ance is implicit to any person who receives the warnings. 
In such circumstances, it would be fundamentally unfair 
and a deprivation of due process to allow the arrested 
person's silence to be used to impeach an explanation 
subsequently offered at trial." 426 U. S., at 617-618 
(footnotes omitted). 

Doyle addressed the propriety of cross-examining defend- 
ants about their silence following Miranda warnings. Here 
the Court of Appeals assumed, without analysis, that re- 
spondent's conduct and statements following the warnings, 
such as his requests for a lawyer, should be treated the same 
as silence. I disagree. Doyle deemed silence "insolubly 
ambiguous" the defendant may be indicating he has nothing 
to say in his defense, or he may be relying on the assurance 
that he has a right to remain silent. Similarly, a request for 
a lawyer has essentially no probative value where the ques- 
tion is one of guilt or innocence: No sensible person would 
draw an inference of guilt from a defendant's request for a 
lawyer after he had been told he had a right to consult one; it 
is simply not true that only a guilty person would want to 
have a lawyer present when being questioned by the police. 

But a request for a lawyer may be highly relevant where 
the plea is based on insanity. There is no "insoluble ambigu- 
ity" in the request; it is a perfectly straightforward state- 
ment tending to show that an individual is able to understand 
his rights and is not incoherent or obviously confused or un- 
balanced. While plainly not conclusive proof of sanity, the 
request for a lawyer, like other coherent and responsive 
statements made near the time of the crime, is certainly 
relevant. * 



*It may be, as the Court suggests, that the prosecution could have 
served its legitimate purposes "by carefully framed questions that avoided 
any mention of the defendant's exercise of his constitutional righ[t] ... to 
consult counsel," ante, at 295. That the prosecutor might have done 
things differently, however, does not render unconstitutional his express 
reference to respondent's invocation of his right to counsel. Indeed, I 



298 OCTOBER TERM, 1985 

REHNQUIST, J., concurring in result 474 U. S. 

Nor does the "unfairness" prong of Doyle, based on the im- 
plicit assurance in the Miranda warnings that "silence will 
carry no penalty," bar prosecutorial comment on respond- 
ent's requests for a lawyer. Officer Pilifant told respondent: 
"You have a right to remain silent. Anything you say can 
and will be used against you in a court of law." App. 73. 
The logical corollary of this warning that what respondent 
does say can be used against him is that what he does not 
say cannot. 

Officer Pilifant's description of respondent's right to coun- 
sel was framed differently: 

"You have the right to talk to a lawyer and have him 
present with you while you are being questioned. If 
you cannot afford to hire a lawyer one will be appointed 
to represent you before any questioning if you wish." 
Ibid. 

I do not read the foregoing statement as containing any 
promise, express or implied, that the words used in respond- 
ing to notice of the right to a lawyer will not be used by the 
State to rebut a claim of insanity. In the absence of such a 
promise, respondent surely was not "tricked" into asking for 
a lawyer, and the prosecutor's reference to respondent's re- 
quest was in no way "fundamentally unfair." 

Nor do I believe that relevant comment about the invoca- 
tion of the right to an attorney, made in an effort to defeat a 
claim of insanity, works the sort of "penalty" condemned in 
Doyle. Inviting the jury to draw an inference of guilt, which 
separates a defendant from the mass of society, is one thing; 
inviting it to draw an inference of sanity or rationality, which 
merely places a defendant together with the mass of society, 
is quite another. A suspect's right to an attorney during 



would think that quotation of a defendant's precise words is a far more 
effective means of disproving insanity than are general references to his 
"rationality" or "responsiveness." 



WAINWRIGHT v. GREENFIELD 299 

284 REHNQUIST, J., concurring in result 

questioning, which is derivative of his right to remain silent, 
see Miranda v. Arizona, 384 U. S. 436, 469-470 (1966), is not 
unconstitutionally burdened by use of his request as evidence 
of his ability to distinguish right from wrong. 

Turning to the prosecutor's closing argument in this case, I 
believe that far less of what the Court of Appeals described 
as the "challenged portion" violated Doyle than did the Court 
of Appeals. That "challenged portion" consists of the follow- 
ing statement: 

"Let's go on to Officer Pilifant who took the stand, who 
the psychiatrists, both defense psychiatrists, never even 
heard about, never even talked to. He states that he 
saw this fellow [respondent] on the beach and that he 
went up to him, talked to him, and then arrested him for 
the offense. The fellow voluntarily put his arms behind 
his back and said he would go to the car. . This is suppos- 
edly an insane person under the throws [sic] of an acute 
condition of schizophrenic paranoia at the time. He 
goes to the car and the officer reads him his Miranda 
rights. Does he say he doesn't understand them? Does 
he say 'What's going on?' No. He says 'I understand 
my rights. I do not want to speak to you. I want to 
speak to an attorney.' Again an occasion of a person 
who knows what's going on around his surroundings, and 
knows the consequences of his act. Even down as 
going down [to] the car as you recollect Officer Pil[i]fant 
said he explained what Miranda rights meant and the 
guy said and Mr. Greenfield said 'I appreciate that, 
thanks a lot for telling me that.' And here we are to be- 
lieve that this person didn't know what he was doing at 
the time of the act, and then even down at the station, 
according to Detective Jolley He's down there. He 
says, 'Have you been read your Miranda rights?' 'Yes, 
I have.' 'Do you want to talk?' 'No.' 'Do you want to 
talk to an attorney?' 'Yes.' And after he talked to the 



300 OCTOBER TERM, 1985 

REHNQUIST, J., concurring in result 474 U. S. 

attorney again he will not speak. Again another physi- 
cal overt indication by the defendant .... 

"So here again we must take this in consideration as to 
his guilt or innocence, in regards to sanity or insanity." 
App. 96-98. 

The first part of the statement describes, in the words of 
the arresting officer, prearrest conduct of the defendant. 
Doyle does not bar this sort of testimony. Fletcher v. Weir, 
455 U. S. 603 (1982). When the defendant was read his 
Miranda rights, he did not remain silent; he said: 

"I understand my rights. I do not want to speak to you. 
I want to speak to an attorney. . . . [And then] I 
appreciate that, thanks a lot for telling me that." 

Thus Doyle does not cover this portion of the closing argu- 
ment either. While a defendant's invocation of his right to 
an attorney, or his statement that he understands (and ap- 
preciates being informed about) his rights, would be largely 
irrelevant in the case of most defenses, it is surely relevant in 
the context of a claim of insanity. 

The only portion of the summation that can, in my opinion, 
be said to violate Doyle is the following: 

"[E]ven down at the station, according to Detective 
Jolley He's down there. He says, 'Have you been read 
your Miranda rights?' 'Yes, I have/ 'Do you want to 
talk?' 'No.' 'Do you want to talk to an attorney?' 
*Yes.' And after he talked to the attorney again he will 
not speak." 

This is a comment on respondent's silence, and as such it con- 
stitutes a breach of the Miranda warning's "implied assur- 
ance" that his silence would not be used against him. 

The Court of Appeals' determination that the prosecutor's 
error was not harmless was based on its apparent conclusion 
that all of the "challenged portion" of the prosecutor's state- 



WAINWRIGHT u GREENFIELD 301 

284 REHNQUIST, J., concurring in result 

ment violated the constitutional rights of the defendant. 
The court stated: 

"The prosecutor relied strongly on [respondent's] con- 
duct as evidence of sanity; his closing argument was not 
lengthy and the portion challenged here was not minor. 
We cannot say that the error was harmless beyond a rea- 
sonable doubt." 741 F. 2d 329, 336 (1984) (emphasis 
added). 

But as noted above, actually a much smaller portion of this 
statement was constitutionally objectionable. And in eval- 
uating whether or not this minute extract from the prosecu- 
tor's closing argument can be deemed harmless, I think an 
important factor apparently not considered by the Court of 
Appeals was that the testimony on which the summation was 
based had already come in without objection. It was there 
for the jury to consider on its own regardless of whether the 
prosecutor ever mentioned it. This fact, together with the 
brevity of the prosecutor's improper comment, at least sug- 
gests that the error was harmless beyond a reasonable doubt. 
See Cupp v. Naughten, 414 U. S. 141 (1973); Donnelly v. 
DeChristoforo, 416 U. S. 637 (1974). As the Court points 
out, however, ante, at 295, n. 13, the Attorney General has 
not contested the Court of Appeals' conclusion that any error 
was not harmless. Accordingly, I concur in the result. 



302 OCTOBER TERM, 1985 

Syllabus 474 U. S. 

UNITED STATES v. LOUD HAWK ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 
THE NINTH CIRCUIT 

No. 84-1361. Argued November 12, 1985 Decided January 21, 1986 

Respondents were arrested and indicted in November 1975 on counts of 
possessing firearms and dynamite. In March 1976, the Federal District 
Court granted respondents' motion to suppress evidence relating to the 
dynamite counts, and the Government promptly filed a notice of appeal 
and requested a continuance. The District Court denied this request 
and, when the Government answered "not ready" after the case was 
called for trial, dismissed the indictment. The Government appealed 
this dismissal, and the two appeals were consolidated. In August 1979, 
the Court of Appeals reversed the suppression order, ordered that the 
dynamite counts be reinstated, and held that the District Court erred in 
dismissing the firearms counts. In November 1979, respondents filed a 
petition for certiorari, which this Court denied. The Court of Appeals' 
mandate issued in March 1980, 46 months after the Government filed its 
notice of appeal from the dismissal of the indictment, during which time 
respondents were unconditionally released. On remand, the District 
Court ordered the Government to reindict on the firearms charges. In 
August 1980, the District Court granted a motion to dismiss on the 
ground of vindictive prosecution as to one respondent but denied it as to 
the other respondents, and both the Government and these respondents 
appealed. During these appeals, respondents remained free on their 
own recognizance. In July 1982, the Court of Appeals reversed the dis- 
missal as to the one respondent and dismissed the appeals of the other 
respondents, and in October 1982 denied respondents' petitions for a re- 
hearing. Respondents then filed a petition for certiorari, which this 
Court denied. The Court of Appeals' mandate issued in January 1983. 
In May 1983, the District Court again dismissed the indictment, ruling 
that respondents' Sixth Amendment right to a speedy trial had been vio- 
lated. The Court of Appeals affirmed. 
Held: 

1. The time during which the indictment was dismissed and respond- 
ents were free of all restrictions on their liberty should be excluded from 
the length of delay considered under the Speedy Trial Clause of the Sixth 
Amendment. United States v. MacDonald, 456 U. S. 1. Pp. 310-312. 
(a) Where no indictment is outstanding, it is only the actual re- 
straints imposed by arrest and holding to answer a criminal charge that 
engages the protection of the Speedy Trial Clause. Here, respondents 



UNITED STATES v. LOUD HAWK 303 

302 Syllabus 

were not incarcerated and were not subject to bail, and further judicial 
proceedings would have been necessary to subject them to any actual 
restraints. Pp. 310-311. 

(b) The fact that the Government's desire to prosecute respondents 
was a matter of public record was insufficient to count the time in ques- 
tion toward a speedy trial claim. Nor does the fact that respondents 
were ordered to appear at the evidentiary hearing held on remand in 
the District Court during the first appeal constitute the sort of "actual 
restraint" required for application of the Speedy Trial Clause. And 
respondents' necessity to obtain counsel while their case was technically 
dismissed was not sufficient to trigger that Clause. Pp. 311-312. 

2. The delay attributable to the interlocutory appeals does not weigh 
effectively towards respondents' claim under the Speedy Trial Clause. 
Under the balancing test of Barker v. Wingo, 407 U. S. 514, courts must 
accommodate the competing concerns of orderly appellate review and a 
speedy trial. Pp. 312-317. 

(a) Three of the factors under Barker the length of delay, the ex- 
tent to which respondents have asserted their speedy trial rights, and 
the prejudice to respondents fail to support a finding of a violation of 
the Speedy Trial Clause. Pp. 314-315. 

(b) The remaining Barker factor, the reason for the delay, also fails 
to carry respondents' claims. The Government's first interlocutory ap- 
peal was justified where the Government could not have otherwise pre- 
sented the issue relating to exclusion of the evidence on the dynamite 
counts, and the Government's appeal on this issue was strong. Simi- 
larly, the Government's second interlocutory appeal was justified be- 
cause the Government could not have otherwise proceeded against the 
one respondent against whom the indictment was dismissed, and here 
too the Government's position was strong. Pp. 315316. 

(c) The delay from respondents' interlocutory appeals does not 
count toward their speedy trial claims. A defendant bears the heavy 
burden of showing an unreasonable delay caused by the prosecution 
in that appeal or a wholly unjustified delay by the appellate court. 
Pp. 316-317. 

3. On the facts, the delays in question were not sufficiently long to 
justify dismissal of the case against respondents because of an alleged 
violation of the Speedy Trial Clause. P. 317. 

741 F. 2d 1184, reversed. 

POWELL, J., delivered the opinion of the Court, in which BURGER, C. J., 
and WHITE, REHNQUIST, and O'CONNOR, JJ., joined. MARSHALL, J , 
filed a dissenting opinion, in which BRENNAN, BLACKMUN, and STEVENS, 
JJ., joined, post, p. 317. 



304 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

Bruce N. Kuhlik argued the cause for the United States. 
With him on the briefs were Solicitor General Fried, Assist- 
ant Attorney General Trott, Deputy Solicitor General Frey, 
and Kathleen A. Felton. 

Kenneth Saul Stern, by appointment of the Court, 471 
U. S. 1123, argued the cause for respondents. With him 
on the brief were Tom Steenson, Ronald P. Schiffman, and 
Michael Timothy Bailey.* 

JUSTICE POWELL delivered the opinion of the Court. 

In this case we must decide, first, whether the Speedy 
Trial Clause of the Sixth Amendment 1 applies to time during 
which respondents were neither under indictment nor sub- 
jected to any official restraint, and, second, whether certain 
delays occasioned by interlocutory appeals were properly 
weighed in assessing respondents' right to a speedy trial. A 
divided panel of the Court of Appeals for the Ninth Circuit 
weighed most of the 90 months from the time of respondents' 
arrests and initial indictment in November 1975 until the Dis- 
trict Court's dismissal of the indictment in May 1983 towards 
respondents' claims under the Speedy Trial Clause. We 
conclude that the time that no indictment was outstanding 
against respondents should not weigh towards respondents' 
speedy trial claims. We also find that in this case the delay 
attributable to interlocutory appeals by the Government and 
respondents does not establish a violation of the Speedy Trial 



* James W. Klein filed a brief for the Public Defender Service for the 
District of Columbia as amicus curiae urging affirmance. 

1 The Speedy Trial Clause of the Sixth Amendment reads: "In all crimi- 
nal prosecutions, the accused shall enjoy the right to a speedy and public 
trial 

The more stringent provisions of the Speedy Trial Act, 18 U. S. C. 
3161 et seq, , have mooted much litigation about the requirements of the 
Speedy Trial Clause as applied to federal prosecutions. The time devoted 
to pretrial appeals, however, is automatically excluded under the Act, 
3161(d)(2) and (h)(l)(E). These respondents must therefore seek any 
relief under the Speedy Trial Clause. 



UNITED STATES u LOUD HAWK 305 

302 Opinion of the Court 

Clause. Accordingly, we reverse the holding of the Court of 
Appeals that respondents were denied their right to a speedy 
trial. 

I 

In view of the nature of respondents' claim, we state the 
factual and procedural history of this case in some detail. On 
November 14, 1975, pursuant to a tip from the Federal Bu- 
reau of Investigation, Oregon state troopers stopped two 
vehicles in search of several federal fugitives. 2 After an 
exchange of gunfire and a motor chase, state troopers cap- 
tured all but one of the respondents, Dennis Banks. 3 Both 
vehicles were locked and impounded while federal and state 
authorities obtained search warrants. 

Searches of the vehicles over the next two days disclosed 
350 pounds of dynamite, 4 6 partially assembled time bombs, 



2 Dennis James Banks, one of the respondents in this action, was active 
in the American Indian Movement, and was a fugitive when these events 
occurred. The siege and occupation of Wounded Knee had taken place 60 
months before, and the Federal Bureau of Investigation was tracking 
Banks and his party as fugitives from that affair. United States v. Loud 
Hawk, 628 F. 2d 1139, 1141 (CA9 1979). For a description of the battle of 
Wounded Knee and the resultant violence and death, see United States v. 
Banks, 383 F. Supp. 389 (SD 1974), appeal dism'd, 513 F. 2d 1329 (CAS 
1975); United States v. Banks, 374 F. Supp. 321 (SD 1974); United States 
v. Banks, 368 F. Supp. 1245 (SD 1973). 

3 The Government represents that it would introduce evidence at trial 
showing that respondent Dennis Banks was the driver of one of the vehi- 
cles. Banks was not apprehended until January 26, 1976. 

4 Respondents still dispute any characterization of the destroyed evi- 
dence as dynamite. Brief in Opposition 4, and n. 4; Brief for Respondents 
4, n. 5. The Court of Appeals wrote: 

"Each of the seven boxes was marked 'High Explosives Dangerous' and on 
the side had the following markings: 

" '50 Ibs 

Gelex 2 1x8 

70% Strength 

D73MAO 7B' 

[Footnote 4 ^s continued on p. 306] 



306 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

2,600 rounds of ammunition, 150 blasting caps, 9 empty hand 
grenades, and miscellaneous firearms. 5 Oregon law enforce- 
ment officers, apparently unaware of the evidentiary conse- 
quences, adhered to their usual policy and destroyed the 
dynamite. A federal agent present at the destruction photo- 
graphed the explosions. United States v. Loud Hawk, 628 
F. 2d 1139, 1142 (CA9 1979). State officials also preserved 
wrappers from the dynamite casings. 

A federal grand jury indicted respondents on November 
25, 1975, on charges of possessing firearms and explosives. 
Trial in the United States District Court for the District of 
Oregon was set for the week of February 9, 1976. On De- 
cember 22, 1975, a grand jury returned a five-count super- 
seding indictment. This indictment charged all respondents 
with three counts relating to possession and transportation in 
commerce of an unregistered destructive device (the dyna- 
mite counts) and two counts relating to unlawful possession 
of firearms (the firearms counts). 

Two days later, respondents filed a motion to suppress all 
evidence concerning the dynamite, arguing that federal and 
state officials had intentionally and negligently destroyed the 
dynamite before the defense had the opportunity to examine 
it. After initially denying respondents' motion, 6 and after 



"together with the logo of the DuPont company prominently displayed. 
Inside were red cylindrical sticks with heavy wrapping paper covering the 
contents and marked: 

" 'Explosives Dangerous 

Gelex 2 
70% Strength 

E I Dupont De Nemours & Co. (Inc.).'" 
United States v. Loud Hawk, supra, at 1144-1145. 

We follow the practice of the opinions discussing the issue and refer to the 
destroyed evidence as dynamite. 741 F. 2d 1184, 1187 (CA9 1984); United 
States v. Loud Hawk, supra, at 1143. Cf. United States v. Banks, 682 F. 
2d 841, 843 (CA9 1982) ("explosive material"). 
e App. 40a-42a, and n. 4, 90a. 
6 The District Court denied the motion on January 21, 1976. 



UNITED STATES v. LOUD HAWK 307 

302 Opinion of the Court 

two continuances at respondents' behest, 7 the District Court 
granted respondents' motion to suppress on March 31, 1976. 
App. to Pet. for Cert. 157a. Three weeks later, the Govern- 
ment appealed the suppression order, 8 and moved that trial 
on all counts be continued pending the outcome of the appeal. 
The District Court denied the Government's request for a 
continuance, and when the case was called for trial, the Gov- 
ernment answered "not ready." Pursuant to Federal Rule 
of Criminal Procedure 48(b), the District Judge dismissed the 
indictment with prejudice. Six months had passed since the 
original indictment. 

The Government immediately appealed the dismissal, and 
the two appeals were consolidated. The Court of Appeals 



7 On January 21, 1976, the District Court postponed trial until March 8, 
1976, on respondents' motion. On respondents' motion and over the objec- 
tion of the Government, on February 18, 1976, the District Court again 
continued trial until May 12, 1976. Record, Doc. Nos. 62, 64. 

8 The Government is permitted to pursue some interlocutory appeals 
under 18 U. S. C. 3731. That section as then in effect read: 

"In a criminal case an appeal by the United States shall lie to a court of 
appeals from a decision, judgment, or order of a district court dismissing an 
indictment or information as to any one or more counts, except that no 
appeal shall lie where the double jeopardy clause of the United States 
Constitution prohibits further prosecution. 

"An appeal by the United States shall lie to a court of appeals from a 
decision or order of a district courts [sic] suppressing or excluding evidence 
or requiring the return of seized property in a criminal proceeding, not 
made after the defendant has been put in jeopardy and before the verdict or 
finding on an indictment or information, if the United States attorney certi- 
fies to the district court that the appeal is not taken for purpose of delay and 
that the evidence is a substantial proof of a fact material in the proceeding. 

"The appeal in all such cases shall be taken within thirty days after the 
decision, judgment or order has been rendered and shall be diligently 
prosecuted. 

"Pending the prosecution and determination of the appeal in the forego- 
ing instances, the defendant shall be released in accordance with chapter 
207 of this title. 

"The provisions of this section shall be liberally construed to effectuate 
its purposes." 



308 OCTOBER TERM, 1985 

Opinion of the Court 474 U.S. 

heard argument on October 15, 1976, and a divided panel 
affirmed in an unreported opinion on July 26, 1977. App. to 
Pet. for Cert. 88a-118a. On the Government's motion, the 
court voted on October 17, 1977, to hear the case en bane. 
On March 6, 1978, the Court of Appeals en bane remanded for 
findings of fact on whether federal officials participated in the 
destruction of the dynamite and whether respondents were 
prejudiced by its destruction. The court retained jurisdic- 
tion over the appeal pending the District Court's findings. 
The District Court issued its findings on August 23, 1978, and 
the case returned to the Court of Appeals. 

On August 7, 1979, the Court of Appeals reversed the sup- 
pression order and directed that the dynamite counts be rein- 
stated. United States v. Loud Hawk, 628 F. 2d, at 1150. 
The court also held that although the Government could have 
gone to trial on the firearms counts pending the appeal, the 
District Court erred in dismissing those counts with preju- 
dice. Id., at 1151. The Court of Appeals denied respond- 
ents' petition for rehearing on October 1, 1979. Respond- 
ents petitioned for certiorari; we denied the petition on 
March 3, 1980. 445 U. S. 917. The mandate of the Court 
of Appeals issued on March 12, 1980, 46 months after the 
Government filed its notice of appeal from the dismissal of 
the indictment. Respondents were unconditionally released 
during that time. 

Following remand, the District Court ordered the Govern- 
ment to reindict on the firearms charges. 9 Respondents 
filed a number of motions during June and July of 1980 in re- 



9 App. 57. The Government obtained a new indictment from the grand 
jury that recharged with the original firearms count (although it substi- 
tuted "receiving" for "transporting") and two of the original three dyna- 
mite device counts. The new indictment also charged the defendants with 
two new destructive device counts relating to a slightly different type of 
destructive device. It also charged respondent KaMook Banks with a new 
count of receiving firearms while under indictment for a felony. 



UNITED STATES v. LOUD HAWK 309 

302 Opinion of the Court 

sponse to the superseding indictment, 10 including a motion to 
dismiss for vindictive prosecution. On August 8, 1980, the 
District Court granted the vindictive prosecution motion as 
to KaMook Banks and denied it as to respondents Dennis 
Banks, Render, and Loud Hawk. Both sides appealed. Re- 
spondents remained free on their own recognizance during 
this appeal. 

The appeals were consolidated, and the Court of Appeals 
ordered expedited consideration. The court heard argument 
on January 7, 1981, but did not issue its decision until July 29, 

1982. The court sustained the Government's position on all 
issues. United States v. Banks, 682 F. 2d 841. Respond- 
ents' petitions for rehearing were denied on October 5, 1982. 
Respondents again petitioned for certiorari, and we denied 
the petition on January 10, 1983. 459 U. S. 1117. The 
Court of Appeals' mandate issued on January 31, 1983, al- 
most 29 months after the appeals were filed. 

The District Court scheduled trial to begin on April 11, 

1983. The Government sought and received a continuance 
until May 3, 1983, because of alleged difficulties in locating 
witnesses more than seven years after the arrests. Subse- 
quently, the court on its own motion continued the trial date 
until May 23, 1983, and then again rescheduled the trial for 
June 13. The record in this Court does not reveal the rea- 



10 A listing of the relevant docket entries, id., at 38-145, shows that the 
motions filed during this 4- week period included: motion for a transcript of 
a recently held hearing (June 24, 1980), id., at 61; motion to dismiss counts 
three and four for insufficient allegations (July 7, 1980), id., at 63; motion 
to suppress evidence of pre trial photographic identification and "Tainted 
Potential Courtroom Identification," ibid.; motion for change injury selec- 
tion procedure, ibid.; motion to dismiss because of the grand jury compo- 
sition, ibid.; motion to dismiss for vindictive prosecution, ibid.; motion 
to dismiss for premdictment delay, ibid., motion for disclosure and pro- 
duction (July 21, 1980), id., at 64; motion for appointment of investiga- 
tor at Government expense, ibid.; and third motion to dismiss for gross 
governmental misconduct, ibid. All motions except for KaMook Banks' 
vindictive prosecution motion were denied (Aug. 5, 1980). Id., at 65-66. 



310 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

sons for these latter two continuances. Defendants objected 
to each continuance. 

On May 20, 1983, the District Court again dismissed the 
indictment, this time on the ground that respondents' Sixth 
Amendment right to a speedy trial had been violated. 564 
F. Supp. 691. The Government appealed, and unsuccess- 
fully urged the District Court to request that the Court of 
Appeals expedite the appeal. On its own motion the court 
treated the appeal as expedited, and heard argument on Jan- 
uary 4, 1984. A divided panel affirmed on August 30, 1984. 
741 F. 2d 1184. u We granted certiorari, 471 U. S. 1014 
(1985), and now reverse. 

II 

The Government argues that under United States v. Mac- 
Donald, 456 U. S. 1 (1982), the time during which defendants 
are neither under indictment nor subject to any restraint on 
their liberty should be excluded weighed not at all when 
considering a speedy trial claim. 12 Respondents contend that 
even during the time the charges against them were dis- 
missed, the Government was actively pursuing its case and 
they continued to be subjected to the possibility that bail 
might be imposed. This possibility, according to respond- 
ents, is sufficient to warrant counting the time towards a 
speedy trial claim. 

The Court has found that when no indictment is outstand- 
ing, only the "actual restraints imposed by arrest and hold- 
ing to answer a criminal charge . . . engage the particular 
protections of the speedy trial provision of the Sixth Amend- 
ment." United States v. Marion, 404 U. S. 307, 320 (1971) 



11 The Ninth Circuit's holding conflicts with three other Circuits. See 
United States v. Herman, 576 F. 2d 1139, 1146 (CAS 1978); United States 
v. Jackson, 508 F. 2d 1001, 1004 (CA7 1975); United States v. Bishton, 150 
U. S. App. D. C. 51, 54, 463 F. 2d 887, 890 (1972). 

12 In MacDonald, we held that where the Government has dismissed an 
indictment and the defendant is not subject to actual restraints on his lib- 
erty, the Speedy Trial Clause does not apply. 



UNITED STATES v. LOUD HAWK 311 

302 Opinion of the Court 

(emphasis added); see MacDonald, supra, at 9. As we 
stated in MacDonald: "The speedy trial guarantee is de- 
signed to minimize the possibility of lengthy incarceration 
prior to trial, to reduce the lesser, but nevertheless substan- 
tial, impairment of liberty imposed on an accused while re- 
leased on bail, and to shorten the disruption of life caused by 
arrest and the presence of unresolved criminal charges." 
456 U. S. , at 8. 

During much of the litigation, respondents were neither 
under indictment nor subject to bail. 13 Further judicial pro- 
ceedings would have been necessary to subject respondents 
to any actual restraints. Cf. Klopfer v. North Carolina, 
386 U. S. 213 (1967). As we stated in MacDonald: "[W]ith 
no charges outstanding, personal liberty is certainly not im- 
paired to the same degree as it is after arrest while charges 
are pending. After the charges against him have been dis- 
missed, *a citizen suffers no restraints on his liberty and is 
[no longer] the subject of public accusation: his situation does 
not compare with that of a defendant who has been arrested 
and held to answer.'" 456 U. S., at 9. 

Respondents argue that the speedy trial guarantee should 
apply to this period because the Government's desire to pros- 
ecute them was a matter of public record. Public suspicion, 
however, is not sufficient to justify the delay in favor of a de- 
fendant's speedy trial claim. We find that after the District 
Court dismissed the indictment against respondents and 
after respondents were freed without restraint, they were 
"in the same position as any other subject of a criminal inves- 
tigation." MacDonald, supra, at 8-9. See Marion, supra, 
at 309. The Speedy Trial Clause does not purport to protect 
a defendant from all effects flowing from a delay before trial. 



13 In those instances where the defendant is subject to incarceration or 
bail, the courts would have to engage in a balancing of the restrictions 
imposed and their effect on the defendant, the necessity for delay, and the 
length of delay, using the approach we have outlined below. Infra, at 
315-316. 



312 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

The Clause does not, for example, limit the length of a pre- 
indictment criminal investigation even though "the [sus- 
pect's] knowledge of an ongoing criminal investigation will 
cause stress, discomfort, and perhaps a certain disruption in 
normal life." 456 U. S., at 9. 

Nor does the fact that respondents were ordered to appear 
at the evidentiary hearing held on remand in the District 
Court during the first appeal an appearance they waived 
constitute the sort of "actual restraint" required under our 
precedents as a basis for application of the Speedy Trial 
Clause. Finally, we are not persuaded that respondents' 
need for counsel while their case was technically dismissed 
supports their speedy trial claim. Although the retention of 
counsel is frequently an inconvenience and an expense, the 
Speedy Trial Clause's core concern is impairment of liberty; 
it does not shield a suspect or a defendant from every ex- 
pense or inconvenience associated with criminal defense. 

We therefore find that under the rule of MacDonald, when 
defendants are not incarcerated or subjected to other sub- 
stantial restrictions on their liberty, a court should not weigh 
that time towards a claim under the Speedy Trial Clause. 

Ill 

The remaining issue is how to weigh the delay occasioned 
by an interlocutory appeal when the defendant is subject to 
indictment or restraint. As we have recognized, the Sixth 
Amendment's guarantee of a speedy trial "is an important 
safeguard to prevent undue and oppressive incarceration 
prior to trial, to minimize anxiety and concern accompanying 
public accusation and to limit the possibilities that long delay 
will impair the ability of an accused to defend himself." 
United States v. Ewell, 383 U. S. 116, 120 (1966). These 
safeguards may be as important to the accused when the 
delay is occasioned by an unduly long appellate process as 
when the delay is caused by a lapse between the initial arrest 
and the drawing of a proper indictment, Swell, supra, at 



UNITED STATES v. LOUD HAWK 313 

302 Opinion of the Court 

118-119, or by continuances in the date of trial, Barker v. 
Wingo, 407 U. S. 514, 517-518 (1972). 

At the same time, there are important public interests in 
the process of appellate review. The assurance that motions 
to suppress evidence or to dismiss an indictment are cor- 
rectly decided through orderly appellate review safeguards 
both the rights of defendants and the "rights of public jus- 
tice." Beavers v. Haubert, 198 U. S. 77, 87 (1905). The 
legislative history of 18 U. S. C. 3731 "makes it clear that 
Congress intended to remove all statutory barriers to Gov- 
ernment appeals and to allow appeals whenever the Constitu- 
tion would permit." United States v. Wilson, 420 U. S. 332, 
337 (1975). 

It is, of course, true that the interests served by appellate 
review may sometimes stand in opposition to the right to a 
speedy trial. But, as the Court observed in United States v. 
Ewell, supra, at 121: 

"It has long been the rule that when a defendant ob- 
tains a reversal of a prior, unsatisfied conviction, he may 
be retried in the normal course of events. . . . [This 
rule] has been thought wise because it protects the soci- 
etal interest in trying people accused of crime, rather 
than granting them immunization because of legal error 
at a previous trial, and because it enhances the proba- 
bility that appellate courts will be vigilant to strike 
down previous convictions that are tainted with revers- 
ible error. . . . These policies, so carefully preserved in 
this Court's interpretation given the Double Jeopardy 
Clause, would be seriously undercut by [an] interpreta- 
tion given the Speedy Trial Clause [that raised a Sixth 
Amendment obstacle to retrial following successful at- 
tack on conviction]." 

In Barker, we adopted a four-part balancing test to deter- 
mine whether a series of continuances infringed upon the de- 
fendant's right to a speedy trial. 407 U. S., at 530. That 
test assessed the "[l]ength of delay, the reason for the 



314 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

delay, the defendant's assertion of his right, and prejudice to 
the defendant." Ibid (footnote omitted). The Barker test 
furnishes the flexibility to take account of the competing 
concerns of orderly appellate review on the one hand, and a 
speedy trial on the other. We therefore adopt this func- 
tional test to determine the extent to which appellate time 
consumed in the review of pretrial motions should weigh 
towards a defendant's speedy trial claim. Under this test, 
we conclude that in this case the delays do not justify the 
"unsatisfactorily severe remedy of dismissal." Id., at 522. 



Barker's first, third, and fourth factors present no great 
difficulty in application. The first factor, the length of delay, 
defines a threshold in the inquiry: there must be a delay long 
enough to be "presumptively prejudicial." Id., at 530. 
Here, a 90-month delay in the trial of these serious charges is 
presumptively prejudicial and serves to trigger application of 
Barker's other factors. Ibid. 

The third factor the extent to which respondents have as- 
serted their speedy trial rights does not support their posi- 
tion. Although the Court of Appeals found that respondents 
have repeatedly moved for dismissal on speedy trial grounds, 
741 F. 2d, at 1192, that finding alone does not establish that 
respondents have appropriately asserted their rights. We 
held in Barker that such assertions from defendants are "en- 
titled to strong evidentiary weight" in determining whether 
their rights to a speedy trial have been denied. 407 U. S. , at 
531-532. These assertions, however, must be viewed in the 
light of respondents' other conduct. 

Here, respondents' speedy trial claims are reminiscent of 
Penelope's tapestry. 14 At the same time respondents were 
making a record of claims in the District Court for speedy 
trial, they consumed six months by filing indisputably frivo- 
lous petitions for rehearing and for certiorari after this 

"Homer, The Odyssey, Book II, lines 91-105 (R. Lattimore trans. 1965). 



UNITED STATES v. LOUD HAWK 315 

302 Opinion of the Court 

Court's decision in United States v. Hollywood Motor Car 
Co., 458 U. S. 263 (1982) (federal courts without jurisdiction 
to hear defendant's interlocutory appeal from denial of mo- 
tion to dismiss indictment). They also filled the District 
Court's docket with repetitive and unsuccessful motions. 
See, e. g., n. 10, supra. 

The Court of Appeals gave "little weight" to the fourth fac- 
tor, prejudice to respondents. At most, the court recog- 
nized the possibility of "impairment of a fair trial that may 
well result from the absence or loss of memory of "witnesses in 
this case." 741 F. 2d, at 1193. See Barker, 407 U. S., at 
532. That possibility of prejudice is not sufficient to support 
respondents' position that their speedy trial rights were vio- 
lated. In this case, moreover, delay is a two-edged sword. 
It is the Government that bears the burden of proving its 
case beyond a reasonable doubt. The passage of time may 
make it difficult or impossible for the Government to carry 
this burden. 

B 

The flag all litigants seek to capture is the second factor, 
the reason for delay. In Barker, we held that "different 
weights should be assigned to different reasons." Id., at 
531. While a "deliberate attempt to delay the trial in order 
to hamper the defense," would be weighed heavily against 
the Government, a delay from "overcrowded courts" as was 
the situation here would be weighed "less heavily." Ibid. 
Given the important public interests in appellate review, 
supra, at 313, it hardly need be said that an interlocutory ap- 
peal by the Government ordinarily is a valid reason that justi- 
fies delay. In assessing the purpose and reasonableness of 
such an appeal, courts may consider several factors. These 
include the strength of the Government's position on the 
appealed issue, the importance of the issue in the posture of 
the case, and in some cases the seriousness of the crime. 
United States v. Herman, 576 F. 2d 1139, 1146 (CAS 1978) 
(Wisdom, J.). For example, a delay resulting from an ap- 



316 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

peal would weigh heavily against the Government if the issue 
were clearly tangential or frivolous. Ibid. Moreover, the 
charged offense usually must be sufficiently serious to justify 
restraints that may be imposed on the defendant pending the 
outcome of the appeal. Ibid. 

Under Barker, delays in bringing the case to trial caused 
by the Government's interlocutory appeal may be weighed in 
determining whether a defendant has suffered a violation of 
his rights to a speedy trial. It is clear in this case, however, 
that respondents have failed to show a reason for according 
these delays any effective weight towards their speedy trial 
claims. There is no showing of bad faith or dilatory purpose 
on the Government's part. The Government's position in 
each of the appeals was strong, and the reversals by the 
Court of Appeals are prima facie evidence of the reasonable- 
ness of the Government's action. Moreover, despite the 
seriousness of the charged offenses, the District Court chose 
not to subject respondents to any actual restraints pending 
the outcome of the appeals. 

The only remaining question is the weight to be attributed 
to delays caused by respondents' interlocutory appeals. In 
that limited class of cases where a pretrial appeal by the de- 
fendant is appropriate, see, e. g., Hollywood Motor Car Co., 
supra. Sit 265-266, delays from such an appeal ordinarily will 
not weigh in favor of a defendant's speedy trial claims. A 
defendant with a meritorious appeal would bear the heavy 
burden of showing an unreasonable delay caused by the pros- 
ecution in that appeal, or a wholly unjustifiable delay by the 
appellate court. A defendant who resorts to an interlocu- 
tory appeal normally should not be able upon return to the 
district court to reap the reward of dismissal for failure to 
receive a speedy trial. As one Court of Appeals has noted in 
the context of a District Court's consideration of pretrial 
motions: 

"Having sought the aid of the judicial process and realiz- 
ing the deliberateness that a court employs in reaching a 



UNITED STATES u LOUD HAWK 317 

302 MARSHALL, J., dissenting 

decision, the defendants are not now able to criticize the 
very process which they so frequently called upon." 
United States v. Auerbach, 420 F. 2d 921, 924 (CA5 
1969), rehearing denied, 423 F. 2d 676, cert, denied, 399 
U. S. 905 (1970). 

In the present case, respondents' appeal was allowable 
under the law of the Ninth Circuit before our decision in Hol- 
lywood Motor Car, supra. But we find that their position 
was so lacking in merit that the time consumed by this appeal 
should not weigh in support of respondents' speedy trial 
claim. Nor do we weigh the additional delay of six months 
resulting from respondents' frivolous action in seeking re- 
hearing and certiorari toward respondents' speedy trial 
claim. See ibid., decided prior to these latter actions. 

IV 

We cannot hold, on the facts before us, that the delays as- 
serted by respondents weigh sufficiently in support of their 
speedy trial claim to violate the Speedy Trial Clause. They 
do not justify the severe remedy of dismissing the indict- 
ment. Accordingly, the judgment of the Court of Appeals 
for the Ninth Circuit is reversed. 

It is so ordered. 

JUSTICE MARSHALL, with whom JUSTICE BRENNAN, JUS- 
TICE BLACKMUN, and JUSTICE STEVENS join, dissenting. 

The Court holds today that the Speedy Trial Clause of the 
Sixth Amendment does not apply to a Government appeal 
from a district court's dismissal of an indictment, unless the 
defendant is incarcerated or otherwise under restraint during 
that appeal. The majority supports this result by equating 
the present case to United States v. MacDonald, 456 U. S. 1 
(1982). That analysis, however, both ignores the consider- 
able differences between this case and MacDonald and gives 
short shrift to the interests protected by the Speedy Trial 
Clause. I further disagree with the majority's application 



318 OCTOBER TERM, 1985 

MARSHALL, J., dissenting 474 U. S. 

of Barker v. Wingo, 407 U. S. 514 (1972), to the remaining 
appellate delays in this case. 



The majority concludes that when an appeal arises out of 
the district court's dismissal of an indictment, the lack of an 
outstanding indictment absolves the Government of its 
responsibility to provide a speedy trial. However, we have 
never conditioned Sixth Amendment rights solely on the 
presence of an outstanding indictment. Those rights attach 
to anyone who is "accused," 1 and we have until now recog- 
nized that one may stand publicly accused without being 
under indictment. The majority offers two reasons for con- 
cluding that respondents did not enjoy the right to a speedy 
trial during the Government's appeals. First, respondents 
were suffering only "[p]ublic suspicion," ante, at 311, and not 
a formal accusation. Second, they were not subject to "ac- 
tual restraints" on their liberty. Both of these rationales are 
seriously flawed. 

A 

In United States v. Marion, 404 U. S. 307 (1971), we held 
that the Speedy Trial Clause does not apply until the Govern- 
ment, either through arrest or indictment, asserts probable 
cause to believe that a suspect has committed a crime. Be- 
fore that time the individual, while possibly aware of the 
Government's suspicion, is not "the subject of public accusa- 
tion," id., at 321, and his only protection against delay comes 
from the Due Process Clause and the applicable statute of 
limitations. The Court applied the same rationale in Mac- 
Donald, supra. In that case, military charges of murder 
against MacDonald, an Army officer, were dropped after an 
investigation. MacDonald was then given an honorable dis- 
charge, only to be indicted by a civilian grand jury nearly 

ir The Sixth Amendment provides in pertinent part: "In all criminal 
prosecutions, the accused shall enjoy the right to a speedy and public 
trial . . . ." 



UNITED STATES u LOUD HAWK 319 

302 MARSHALL, J., dissenting 

four years later for the same murders. The Court held that 
this delay did not implicate the speedy trial right because 
"the Speedy Trial Clause has no application after the Govern- 
ment, acting in good faith, formally drops charges." Id., at 
7. The Court reasoned that after the termination of the first 
formal prosecution, MacDonald was "in the same position as 
any other subject of a criminal investigation," id., at 8-9, and 
thus was no more an "accused" than was the defendant in 
Marion before his arrest. 

The same cannot be said of respondents in the present 
case. 2 Unlike one who has not been arrested, or one who 
has had the charges against him dropped, respondents did 
not enjoy the protection of the statute of limitations while the 
Government prosecuted its appeals. That protection was an 
important aspect of our holding in Marion that prearrest 
delay is not cognizable under the Speedy Trial Clause. See 
404 U. S., at 322-323. More importantly, in contrast to 
MacDonald, the Government has not "dropped" anything in 



2 It is also instructive to compare the present case and MacDonald 
with respect to another Sixth Amendment right the right to counsel. 
Surely a Government appeal under 18 U. S. C. 3731 is a "critical stage" 
of the prosecution, implicating the Sixth Amendment right to counsel. 
Cf. Evitts v. Lucey, 469 U. S. 387 (1985) (defendant in state prosecution 
has due process right to effective assistance of counsel on appeal, whether 
counsel is retained or appointed). As during other critical stages, the 
defendant needs an attorney during a government appeal u as a shield to 
protect him against being 'haled into court* by the State and stripped of 
his presumption of innocence. " Ross v. Mqffitt, 417 U. S. 600, 610-611 
(1974), Again, the contrast to MacDonald is striking. The defendant in 
that case would have had no Sixth Amendment right to counsel during the 
time between the dropping of the Army charges and the filing of the grand 
jury charges; that period was not a "critical stage" of a prosecution. 

In United States v. Gouveia, 467 U. S. 180 (1984), we held that the Sixth 
Amendment right to counsel is satisfied in a narrower class of cases than 
the speedy trial right. It therefore defies logic to conclude that respond- 
ents could be protected by the former, but not the latter, during the Gov- 
ernment's appeal. 



320 OCTOBER TERM, 1985 

MARSHALL, J., dissenting 474 U. S. 

this case. 8 There has been at all relevant times a case on a 
court docket captioned United States v. Loud Hawk I can 
think of no more formal indication that respondents stand 
accused by the Government. 

The majority argues that while "the Government's desire 
to prosecute [respondents] was a matter of public record," 
that desire constituted only "[p]ublic suspicion" that is insuf- 
ficient to call Sixth Amendment rights into play, citing Mar- 
ion and MacDonald. Ante, at 311. The reason that the 
Government's desire to prosecute in both of those cases did 
not constitute an "accusation," however, is that the Govern- 
ment had not yet formalized its commitment. Indeed, in 
MacDonald, the Government dismissed the murder charges 
because it "concluded that they were untrue," 456 U. S., at 
10, n. 12, thus acknowledging that the first formal accusation 
had been a mistake and extinguishing the prior probable- 
cause determination. In the present case, the Government 
has made no such confession of error and continues to align 
its full resources against respondents in judicial proceedings. 
The most telling difference between this case and MacDon- 
ald, however, is the fact that respondents' liberty could have 
been taken from them at any time during the Government's 

3 That neither Congress nor this Court has had any difficulty recogniz- 
ing the fundamental difference between the Government's dismissal of an 
indictment and the court's dismissal, subject to appellate review, is clear 
from Federal Rule of Criminal Procedure 48. Subdivision (a) of that Rule 
permits the Government, with leave of court, to dismiss an indictment, and 
provides that when the indictment is dismissed, "the prosecution shall 
thereupon terminate." Subdivision (b) permits the district court to dis- 
miss an indictment, but contains no language suggesting that such action 
brings the prosecution to an end nor could it, because the court's dis- 
missal is subject to the Government's statutory right to appeal. 

Asking whether the indictment "exists" during the appeal, while inter- 
esting from the standpoint of ontology, is of limited practical help. Yet it 
is significant that in the MacDonald situation the Government must go 
back to the grand jury and seek reindictment. When the district court dis- 
misses an indictment, on the other hand, the court of appeals can reinstate 
the indictment with the stroke of a pen. 



UNITED STATES v. LOUD HAWK 321 

302 MARSHALL, J. , dissenting 

appeal. One of the primary purposes of the speedy trial 
right, of course, is to prevent prolonged restraints on liberty, 
id., Sit 8; Barker v. Wingo, 407 U. S., at 532, and the absence 
of any possibility of such restraints was a vital part of our 
MacDonald holding. See 456 U. S., at 9. In contrast, Con- 
gress has declared explicitly, in 18 U. S. C. 3731, that a 
person in respondents' position shall be subject to the same 
restraints as an arrested defendant awaiting trial. 4 Thus 
the District Court had the undoubted authority to condition 
respondents' release on the posting of bail, or indeed to keep 
them in jail throughout the appeal, see 18 U. S. C. 3142(e) 
(1982 ed., Supp. III). Respondents' release could have been 
accompanied by restrictions on travel, association, employ- 
ment, abode, and firearms possession, or conditioned on their 
reporting regularly to law enforcement officers and/or keep- 
ing a curfew. See 3142(c). Considering all the circum- 
stances, therefore, I believe that respondents' position is 
most closely analogous to that of a defendant who has been 
arrested but not yet indicted. 

B 

As if acknowledging that the delay in this case is more 
analogous to postarrest, preindictment delay than to pre- 
arrest delay, the majority concedes that had respondents 
been incarcerated or forced to post bond during the Govern- 
ment's appeals, the automatic exclusion rule of MacDonald 
would not apply. Ante, at 311, n. 13. Yet, inexplicably, the 
majority then suggests that the Speedy Trial Clause applies 
to postarrest, preindictment delay only when the defendant 
has been subjected to "'actual restraints,'" ante, at 310, 

4 Title 18 U. S. C. 3731 provides in pertinent part: "Pending the pros- 
ecution and determination of the appeal . . . the defendant shall be released 
in accordance with chapter 207 of this title." Chapter 207, 18 U. S. C. 
3141-3156, contains the procedures for pretrial release, and permits the 
district courts to impose various restraints pending trial. The Govern- 
ment concedes that respondents could have been incarcerated or put under 
other restraints during the Government's appeals. Tr. of Oral Arg. 6, 18. 



322 OCTOBER TERM, 1985 

MARSHALL, J., dissenting 474 U. S. 

quoting Marion, 404 U, S., at 320 (emphasis added by major- 
ity opinion). The majority completely misreads Marion 
while creating a rule that is flatly inconsistent with our prior 
holdings. 

We held in Marion that prearrest delay is not cognizable 
under the Speedy Trial Clause, but we certainly did not dis- 
turb the settled rule that the Government's formal institution 
of criminal charges, whether through arrest or indictment, 
always calls the speedy trial right into play. See id., at 
316-319; see also United States v. Gouveia, 467 U. S. 180, 
185-186 (1984). Although it specified detention and bail as 
possible deleterious effects of a formal criminal charge, Mar- 
ion nowhere suggested that it is the restraints themselves, 
rather than the assertion of probable cause, that constitute 
an accusation. Nor did we hold that a criminal charge has 
less constitutional significance when a defendant is released 
on recognizance rather than on bail. See 404 U. S., at 321, 
n. 12. The majority identifies no logic or precedent support- 
ing its novel conclusion that a defendant who is arrested and 
released on bail is "accused," while a defendant who is ar- 
rested and released without bail, on the same evidence, is not 
"accused." 6 

Indeed, we have rejected precisely the interpretation of 

Marion that the majority now adopts. In Dillingham v. 

United States, 423 U. S. 64 (1975) (per curiam), we held that 



6 It is worth noting that the Speedy Trial Act puts time limits on the 
Government beginning with "the date on which [the defendant] was ar- 
rested or served with a summons," 18 U. S. C. 3161, without regard to 
the terms of the defendant's release. 

Moreover, Federal Rule of Criminal Procedure 48(b), which "provides 
for enforcement of the [speedy trial] right," Pollard v. United States, 352 
U. S. 354, 361, n. 7 (1957); see Marion, 404 U. S., at 319, states: "If there 
is unnecessary delay in presenting the charge to a grand jury or in filing an 
information against a defendant who has been held to answer to the district 
court, . . . the court may dismiss the indictment, information or complaint." 
That language clearly confers the same rights on a defendant who is ar- 
rested and unconditionally released as one who is released on conditions. 



UNITED STATES u LOUD HAWK 323 

302 MARSHALL, J., dissenting 

Marion does not require "actual prejudice" to invoke the 
speedy trial right for postarrest, preindictment delay. Such 
"actual prejudice" included the "actual restraints" that the 
majority now requires. The Court of Appeals in- that case 
noted that the defendant was released on bond, but without 
any other restrictions, pending trial. After citing Marion, it 
held that "any increased strain on this man's life which fol- 
lowed his arrest . . . does not rise to the level of substantial 
actual prejudice." United States v. Palmer, 502 F. 2d 1233, 
1237 (CAS 1974), rev'd sub nom. Dillingham v. United 
States, supra. We summarily rejected the "actual preju- 
dice" rationale, and the majority gives no reason whatsoever 
for resurrecting it today. 6 

There can be no question that one who had been arrested 
and released under 18 U. S. C. 3141(a) (1982 ed., Supp. Ill) 
would be entitled, under Marion, to the protections of the 
Speedy Trial Clause. Because respondents were by statute 
subject to the same restraints as that hypothetical defendant, 
I am at a loss to understand why they should enjoy less 
protection. 

II 

The majority also declines to hold the Government account- 
able for delay attributable to appeals during which respond- 



6 Apparently relying on the fact that the defendant in Dilhngham had to 
post a $1,500 bond, see 502 F. 2d, at 1234, the Government reads 
Dillingham to stand for the proposition that any restriction, no matter how 
insignificant, invokes the Speedy Trial Clause when no indictment is out- 
standing. See Tr. of Oral Arg. 19. Once again, neither the plain lan- 
guage of the Sixth Amendment nor any decision of this Court suggests this 
peculiar constitutional standard. Moreover, while an indictment and an 
arrest are comparable in that each one constitutes a formal assertion of 
probable cause, there is no such symmetry between an indictment and 
incarceration or posting of bond. Simply put, the position advanced by 
the Government and the majority lacks even internal consistency. 

The only sensible reading of Dilhngham is that actual restraints, like 
other types of prejudice to a defendant, are relevant to the speedy trial 



324 OCTOBER TERM, 1985 

MARSHALL, J., dissenting 474 U. S. 

ents were under indictment. In doing so the majority em- 
phasizes the second Barker factor the reason for the delay, 
see 407 U. S., at 530. Because it concludes that "[t]here is 
no showing of bad faith or dilatory purpose on the Govern- 
ment's part," the majority declines to accord any "effective 
weight" to this factor in the speedy trial balance. Ante, at 
316. In reaching this conclusion, it virtually ignores the 
most obvious "reason for the delay" in this case the fact that 
the Court of Appeals was unable to decide these appeals in a 
reasonably prompt manner. 

In Barker, we explained the application of the "reason for 
the delay" factor as follows: 

"[D]ifferent weights should be assigned to different rea- 
sons. A deliberate attempt to delay the trial in order to 
hamper the defense should be weighted heavily against 
the government. A more neutral reason such as negli- 
gence or overcrowded courts should be weighted less 
heavily but nevertheless should be considered since the 
ultimate responsibility for such circumstances must rest 
with the government rather than with the defendant." 
407 U. S., at 531 (footnote omitted). 

The majority's application of this factor to the appellate de- 
lays in this case makes Government misconduct or bad faith a 
virtual prerequisite to a finding of a speedy trial violation. 
Seizing upon the approach of some of the Courts of Appeals, 7 
the majority analyzes the reason behind the appellate delay 
solely in terms of the reasonableness of the Government's be- 
havior in taking and prosecuting the appeal. This approach 
is inconsistent with the policies behind the speedy trial right. 
We recognized in Barker that the right protects both the de- 
fendant's interest in fairness and society's interest in provid- 



balance, but are not prerequisites to application of the Speedy Trial 
Clause. See Barker v. Wingo, 407 U. S. 514, 533 (1972). 

7 See, e. g., United States v. Sa^nt^l, 705 F. 2d 415 (CA11 1983); United 
States v. Herman, 576 F. 2d 1139 (CA5 1978). 



UNITED STATES v. LOUD HAWK 325 

302 MARSHALL, J., dissenting 

ing swift justice. Id. , at 519. Courts as well as prosecutors 
must necessarily work to promote those interests if they are 
to have any vitality. Because it is the Government as a 
whole including the courts that bears the responsibility 
to provide a speedy trial, the prosecutor's good faith cannot 
suffice to discharge that responsibility. 8 

The Court of Appeals frankly admitted that "most of the 
delay must be attributed to the processes of this court," 741 
F. 2d 1184, 1191 (CA9 1984), a conclusion that is difficult to 
escape. This case involves appeals from pretrial rulings. 
The Court of Appeals had every reason to know that these 
appeals should have been ruled upon as expeditiously as pos- 
sible. See that court's Rule 20. Yet it took over five years 
for the Court of Appeals to decide two appeals, one of them 
"expedited." No complicated analysis is needed to identify 
the reason for the delay in this case. 

I would hold, simply, that a nonfrivolous appeal by any 
party permits a reasonable delay in the proceedings. The 
number and complexity of the issues on appeal, or the num- 
ber of parties, might permit a greater or lesser delay in a 
given case. The government, not the defendant, must suffer 
the ultimate consequences of delays attributable to "over- 
crowded courts," ibid., even at the appellate level. 9 In the 

8 This assumes, of course, that the defendant wants a speedy trial and is 
not intentionally hindering the government's attempt to provide one. 
That assumption may be open to question in this case. The majority 
points out that respondents* strategically timed demands for a speedy trial 
ring somewhat hollow in light of respondents' overall behavior during the 
litigation. Were that the basis for the Court's opinion, I might be able to 
accept a remand to the Court of Appeals for further consideration of that 
factor. I am unable, however, to agree with the majority's analysis of the 
second Barker v. Wingo factor. 

9 The majority's focus on the prosecution's, rather than the court's, con- 
tribution to the delay undoubtedly comes in part from a reluctance to per- 
mit district courts to tell a court of appeals, or possibly this Court, that it 
has taken too long to decide a case. However, appellate courts have no 
privilege to decline constitutional obligations. The appellate courts would 
be better advised to adopt procedures for the speedy resolution of mterloc- 



326 OCTOBER TERM, 1985 

MARSHALL, J., dissenting 474 U. S. 

present case, the amount of time that the appeals consumed 
is patently unreasonable. I would therefore weigh the sec- 
ond Barker factor against the Government in this case. 

Ill 

The majority has seriously misapplied our precedents in 
concluding that delay resulting when the government appeals 
the dismissal of an indictment is excludable for speedy trial 
purposes unless the defendant is subjected to actual re- 
straints during that appeal. Its application of Barker v. 
Wingo to this case also undercuts the very purpose of the 
speedy trial right. I respectfully dissent. 



utory criminal appeals than to force district courts into the uncomfortable 
position of dismissing indictments because of appellate delay. 



DANIELS v. WILLIAMS 327 

Syllabus 

DANIELS v. WILLIAMS 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 
THE FOURTH CIRCUIT 

No. 84-5872. Argued November 6, 1985 Decided January 21, 1986 

Petitioner brought an action in Federal District Court under 42 U. S. C. 
1983, seeking to recover damages for injuries allegedly sustained 
when, while an inmate in a Richmond, Virginia, jail, he slipped on a 
pillow negligently left on a stairway by respondent sheriff's deputy. 
Petitioner contends that such negligence deprived him of his "liberty" 
interest in freedom from bodily injury '"without due process of law" 
within the meaning of the Due Process Clause of the Fourteenth Amend- 
ment. The District Court granted respondent's motion for summary 
judgment, and the Court of Appeals affirmed. 

Held: The Due Process Clause is not implicated by a state official's negli- 
gent act causing unintended loss of or injury to life, liberty, or property. 
Pp. 329-336. 

(a) The Due Process Clause was intended to secure an individual from 
an abuse of power by government officials. Far from an abuse of power, 
lack of due care, such as respondent's alleged negligence here, suggests 
no more than a failure to measure up to the conduct of a reasonable per- 
son. To hold that injury caused by such conduct is a deprivation within 
the meaning of the Due Process Clause would trivialize the centuries-old 
principle of due process of law. Parratt v. Taylor, 451 U. S. 527, over- 
ruled to the extent that it states otherwise. Pp. 329-332. 

(b) The Constitution does not purport to supplant traditional tort law 
in laying down rules of conduct to regulate liability for injuries that 
attend living together in society. While the Due Process Clause speaks 
to some facets of the relationship between jailers and inmates, its protec- 
tions are not triggered by lack of due care by the jailers. Jailers may 
owe a special duty of care under state tort law to those in their custody, 
but the Due Process Clause does not embrace such a tort law concept. 
Pp. 332-336. 

748 F. 2d 229, affirmed. 

REHNQUIST, J., delivered the opinion of the Court, in which BURGER, 
C. J., and BRENNAN, WHITE, POWELL, and O'CONNOR, JJ., joined. MAR- 
SHALL, J., concurred in the result. BLACKMUN, J., post, p. 336, and 
STEVENS, J., post, p. 336, filed opinions concurring in the judgment. 



328 OCTOBER TERM, 1985 

Opinion of the Court 474 U, S. 

Stephen Allan Saltzburg argued the cause and filed briefs 
for petitioner. 

James Walter Hopper argued the cause and filed a brief for 
respondent. 

JUSTICE REHNQUIST delivered the opinion of the Court. 
In Parratt v. Taylor, 451 U. S. 527 (1981), a state prisoner 
sued under 42 U. S. C. 1983, claiming that prison officials 
had negligently deprived him of his property without due 
process of law. After deciding that 1983 contains no inde- 
pendent state-of-mind requirement, we concluded that al- 
though petitioner had been "deprived" of property within 
the meaning of the Due Process Clause of the Fourteenth 
Amendment, the State's postdeprivation tort remedy pro- 
vided the process that was due. Petitioner's claim in this 
case, which also rests on an alleged Fourteenth Amendment 
"deprivation" caused by the negligent conduct of a prison offi- 
cial, leads us to reconsider our statement in Parratt that "the 
alleged loss, even though negligently caused, amounted to a 
deprivation." Id., at 536-537. We conclude that the Due 
Process Clause is simply not implicated by a negligent act of 
an official causing unintended loss of or injury to life, liberty, 
or property. 

In this 1983 action, petitioner seeks to recover damages 
for back and ankle injuries allegedly sustained when he fell on 
a prison stairway. He claims that, while an inmate at the 
city jail in Richmond, Virginia, he slipped on a pillow negli- 
gently left on the stairs by respondent, a correctional deputy 
stationed at the jail. Respondent's negligence, the argu- 
ment runs, "deprived" petitioner of his "liberty" interest in 
freedom from bodily injury, see Ingraham v. Wright, 430 
U. S. 651, 673 (1977); because respondent maintains that he 
is entitled to the defense of sovereign immunity in a state 
tort suit, petitioner is without an "adequate" state remedy, 
cf. Hudson v. Palmer, 468 U. S. 517, 534-536 (1984). Ac- 
cordingly, the deprivation of liberty was without "due proc- 
ess of law." 



DANIELS v. WILLIAMS 329 

327 Opinion of the Court 

The District Court granted respondent's motion for sum- 
mary judgment. A panel of the Court of Appeals for the 
Fourth Circuit affirmed, concluding that even if respondent 
could make out an immunity defense in state court, petitioner 
would not be deprived of a meaningful opportunity to present 
his case. 720 F. 2d 792 (1983). On rehearing, the en bane 
Court of Appeals affirmed the judgment of the District 
Court, but under reasoning different from that of the panel. 
748 F. 2d 229 (1984). First, a 5-4 majority ruled that negli- 
gent infliction of bodily injury, unlike the negligent loss of 
property in Parratt, does not constitute a deprivation of any 
interest protected by the Due Process Clause. The majority 
therefore believed that the postdeprivation process man- 
dated by Parratt for property losses was not required. Sec- 
ond, the en bane court unanimously decided that even if a 
prisoner is entitled to some remedy for personal injuries 
attributable to the negligence of state officials, Parratt would 
bar petitioner's claim if the State provided an adequate 
postdeprivation remedy. Finally, a 6-3 majority concluded 
that petitioner had an adequate remedy in state court, even 
though respondent asserted that he would rely on sovereign 
immunity as a defense in a state suit. The majority appar- 
ently believed that respondent's sovereign immunity defense 
would fail under Virginia law. 

Because of the inconsistent approaches taken by lower 
courts in determining when tortious conduct by state officials 
rises to the level of a constitutional tort, see Jackson v. Jo- 
liet, 465 U. S. 1049, 1050 (1984) (WHITE, J., dissenting from 
denial of certiorari) (collecting cases), and the apparent lack 
of adequate guidance from this Court, we granted certiorari. 
469 U. S. 1207 (1985). We now affirm. 

In Parratt v. Taylor, we granted certiorari, as we had 
twice before, "to decide whether mere negligence will sup- 
port a claim for relief under 1983." 451 U. S., at 532. 
After examining the language, legislative history, and prior 
interpretations of the statute, we concluded that 1983, un- 



330 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

like its criminal counterpart, 18 U. S. C. 242, contains no 
state-of-mind requirement independent of that necessary to 
state a violation of the underlying constitutional right. Id. , 
at 534-535. We adhere to that conclusion. But in any given 
1983 suit, the plaintiff must still prove a violation of the 
underlying constitutional right; and depending on the right, 
merely negligent conduct may not be enough to state a claim. 
See, e. g., Arlington Heights v. Metropolitan Housing Dev. 
Corp. , 429 U. S. 252 (1977) (invidious discriminatory purpose 
required for claim of racial discrimination under the Equal 
Protection Clause); Estelle v. Gamble, 429 U. S. 97, 105 
(1976) ("deliberate indifference" to prisoner's serious illness 
or injury sufficient to constitute cruel and unusual punish- 
ment under the Eighth Amendment). 

In Parratt, before concluding that Nebraska's tort remedy 
provided all the process that was due, we said that the loss of 
the prisoner's hobby kit, "even though negligently caused, 
amounted to a deprivation [under the Due Process Clause]." 
451 U. S., at 536-537. JUSTICE POWELL, concurring in the 
result, criticized the majority for "pass[ing] over" this impor- 
tant question of the state of mind required to constitute a 
"deprivation" of property. Id. , at 547. He argued that neg- 
ligent acts by state officials, though causing loss of property, 
are not actionable under the Due Process Clause. To JUS- 
TICE POWELL, mere negligence could not "wor[k] a depriva- 
tion in the constitutional sense." Id., at 548 (emphasis in 
original). Not only does the word "deprive" in the Due Proc- 
ess Clause connote more than a negligent act, but we should 
not "open the federal courts to lawsuits where there has been 
no affirmative abuse of power." Id., at 548-549; see also id., 
at 545 (Stewart, J., concurring) ("To hold that this kind of 
loss is a deprivation of property within the meaning of the 
Fourteenth Amendment seems not only to trivialize, but 
grossly to distort the meaning and intent of the Constitu- 
tion"). Upon reflection, we agree and overrule Parratt to 
the extent that it states that mere lack of due care by a state 



DANIELS v. WILLIAMS 331 

327 Opinion of the Court 

official may "deprive" an individual of life, liberty, or prop- 
erty under the Fourteenth Amendment. 

The Due Process Clause of the Fourteenth Amendment 
provides: "[N]or shall any State deprive any person of life, 
liberty, or property, without due process of law." Histori- 
cally, this guarantee of due process has been applied to delib- 
erate decisions of government officials to deprive a person of 
life, liberty, or property. E. g., Davidson v. New Orleans, 
96 U. S. 97 (1878) (assessment of real estate); Rochin v. Cali- 
fornia, 342 U. S. 165 (1952) (stomach pumping); Bell v. Bur- 
son, 402 U. S. 535 (1971) (suspension of driver's license); 
Ingraham v. Wright, 430 U. S. 651 (1977) (paddling student); 
Hudson v. Palmer, 468 U. S. 517 (1984) (intentional destruc- 
tion of inmate's property). No decision of this Court before 
Parratt supported the view that negligent conduct by a state 
official, even though causing injury, constitutes a depriva- 
tion under the Due Process Clause. This history reflects 
the traditional and common-sense notion that the Due Proc- 
ess Clause, like its forebear in the Magna Carta, see Corwin, 
The Doctrine of Due Process of Law Before the Civil War, 24 
Harv. L. Rev. 366, 368 (1911), was "'intended to secure 
the individual from the arbitrary exercise of the powers of 
government/" Hurtado v. California, 110 U. S. 516, 527 
(1884) (quoting Bank of Columbia v. Okely, 4 Wheat. 235, 
244 (1819)). See also Wolff v. McDonnell, 418 U. S. 539, 558 
(1974) ("The touchstone of due process is protection of the in- 
dividual against arbitrary action of government, Dent v. West 
Virginia, 129 U. S. 114, 123 (1889)"); Parratt, supra, at 549 
(POWELL, J., concurring in result). By requiring the gov- 
ernment to follow appropriate procedures when its agents 
decide to "deprive any person of life, liberty, or property," 
the Due Process Clause promotes fairness in such decisions. 
And by barring certain government actions regardless of the 
fairness of the procedures used to implement them, e. g., 
Rochin, supra, it serves to prevent governmental power 
from being "used for purposes of oppression," Murray's Les- 



332 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

see v. Hoboken Land & Improvement Co., 18 How. 272, 277 
(1856) (discussing Due Process Clause of Fifth Amendment). 
We think that the actions of prison custodians in leaving a 
pillow on the prison stairs, or mislaying an inmate's property, 
are quite remote from the concerns just discussed. Far from 
an abuse of power, lack of due care suggests no more than a 
failure to measure up to the conduct of a reasonable person. 
To hold that injury caused by such conduct is a deprivation 
within the meaning of the Fourteenth Amendment would 
trivialize the centuries-old principle of due process of law. 
The Fourteenth Amendment is a part of a Constitution 
generally designed to allocate governing authority among the 
Branches of the Federal Government and between that Gov- 
ernment and the States, and to secure certain individual 
rights against both State and Federal Government. When 
dealing with a claim, that such a document creates a right in 
prisoners to sue a government official because he negligently 
created an unsafe condition in the prison, we bear in mind 
Chief Justice Marshall's admonition that "we must never for- 
get, that it is a constitution we are expounding," McCulloch 
v. Maryland, 4 Wheat. 316, 407 (1819) (emphasis in original). 
Our Constitution deals with the large concerns of the gover- 
nors and the governed, but it does not purport to supplant 
traditional tort law in laying down rules of conduct to regu- 
late liability for injuries that attend living together in society. 
We have previously rejected reasoning that "'would make 
of the Fourteenth Amendment a font of tort law to be super- 
imposed upon whatever systems may already be adminis- 
tered by the States/" Paul v. Davis, 424 U. S. 693, 701 
(1976), quoted in Parratt v. Taylor, 451 U. S., at 544. 

The only tie between the facts of this case and anything 
governmental in nature is the fact that respondent was a 
sheriff's deputy at the Richmond city jail and petitioner was 
an inmate confined in that jail. But while the Due Process 
Clause of the Fourteenth Amendment obviously speaks to 
some facets of this relationship, see, e. g., Wolff v. McDon- 



DANIELS v. WILLIAMS 333 

327 Opinion of the Court 

nell, supra, we do not believe its protections are triggered 
by lack of due care by prison officials. "Medical malpractice 
does not become a constitutional violation merely because 
the victim is a prisoner," Estelle v. Gamble, 429 U. S. 97, 
106 (1976), and "false imprisonment does not become a vio- 
lation of the Fourteenth Amendment merely because the 
defendant is a state official." Baker v. McCollan, 443 U. S. 
137, 146 (1979). Where a government official's act causing 
injury to life, liberty, or property is merely negligent, "no 
procedure for compensation is constitutionally required." 
Parratt, supra, at 548 (POWELL, J., concurring in result) 
(emphasis added). 1 

That injuries inflicted by governmental negligence are not 
addressed by the United States Constitution is not to say 
that they may not raise significant legal concerns and lead to 
the creation of protectible legal interests. The enactment 
of tort claim statutes, for example, reflects the view that 
injuries caused by such negligence should generally be 
redressed. 2 It is no reflection on either the breadth of the 
United States Constitution or the importance of traditional 
tort law to say that they do not address the same concerns. 

In support of his claim that negligent conduct can give rise 
to a due process "deprivation," petitioner makes several ar- 
guments, none of which we find persuasive. He states, for 
example, that "it is almost certain that some negligence 
claims are within 1983," and cites as an example the failure 
of a State to comply with the procedural requirements of 
Wolff v. McDonnell, supra, before depriving an inmate of 
good-time credit. We think the relevant action of the prison 



Accordingly, we need not decide whether, as petitioner contends, the 
possibility of a sovereign immunity defense in a Virginia tort suit would 
render that remedy "inadequate" under Parratt and Hudson v. Pa liner, 
468 U. S. 517 (1984). 

2 See, e. g., the Virginia Tort Claims Act, Va. Code 8.01-195 1 et sec/ 
(1984), which applies only to actions accruing on or after July 1, 1982, and 
hence is inapplicable to this case. 



334 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

officials in that situation is their deliberate decision to de- 
prive the inmate of good-time credit, not their hypothetically 
negligent failure to accord him the procedural protections of 
the Due Process Clause. But we need not rule out the pos- 
sibility that there are other constitutional provisions that 
would be violated by mere lack of care in order to hold, as we 
do, that such conduct does not implicate the Due Process 
Clause of the Fourteenth Amendment. 

Petitioner also suggests that artful litigants, undeterred by 
a requirement that they plead more than mere negligence, 
will often be able to allege sufficient facts to support a claim 
of intentional deprivation. In the instant case, for example, 
petitioner notes that he could have alleged that the pillow 
was left on the stairs with the intention of harming him. 
This invitation to "artful" pleading, petitioner contends, 
would engender sticky (and needless) disputes over what is 
fairly pleaded. What's more, requiring complainants to al- 
lege something more than negligence would raise serious 
questions about what "more" than negligence intent, reck- 
lessness, or "gross negligence" is required, 3 and indeed 
about what these elusive terms mean. See Reply Brief for 
Petitioner 9 ("what terms like willful, wanton, reckless or 
gross negligence mean" has "left the finest scholars puz- 
zled"). But even if accurate, petitioner's observations do not 
carry the day. In the first place, many branches of the law 
abound in nice distinctions that may be troublesome but have 
been thought nonetheless necessary: 

"I do not think we need trouble ourselves with the 
thought that my view depends upon differences of de- 
gree. The whole law does so as soon as it is civilized." 



8 Despite his claim about what he might have pleaded, petitioner con- 
cedes that respondent was at most negligent. Accordingly, this case af- 
fords us no occasion to consider whether something less than intentional 
conduct, such as recklessness or "gross negligence," is enough to trigger 
the protections of the Due Process Clause. 



DANIELS u WILLIAMS 335 

327 Opinion of the Court 

LeRoy Fibre Co. v. Chicago, M. & St. P. R. Co., 232 
U. S. 340, 354 (1914) (Holmes, J., partially concurring). 

More important, the difference between one end of the spec- 
trumnegligence and the other- intent is abundantly 
clear. See O. Holmes, The Common Law 3 (1923). In any 
event, we decline to trivialize the Due Process Clause in an 
effort to simplify constitutional litigation. 

Finally, citing South v. Maryland, 18 How. 396 (1856), 
petitioner argues that respondent's conduct, even if merely 
negligent, breached a sheriff's "special duty of care" for those 
in his custody. Reply Brief for Petitioner 14. The Due 
Process Clause, petitioner notes, "was intended to give 
Americans at least the protection against governmental 
power that they had enjoyed as Englishmen against the 
power of the crown." Ingraham v. Wright, 430 U. S., at 
672-673. And South v. Maryland suggests that one such 
protection was the right to recover against a sheriff for 
breach of his ministerial duty to provide for the safety of 
prisoners in his custody. 18 How., at 402-403. Due process 
demands that the State protect those whom it incarcerates 
by exercising reasonable care to assure their safety and by 
compensating them for negligently inflicted injury. 

We disagree. We read South v. Maryland, supra, an ac- 
tion brought under federal diversity jurisdiction on a Mary- 
land sheriff's bond, as stating no more than what this Court 
thought to be the principles of common law and Maryland law 
applicable to that case; it is not cast at all in terms of constitu- 
tional law, and indeed could not have been, since at the time 
it was rendered there was no due process clause applicable 
to the States. Petitioner's citation to Ingraham v. Wright 
does not support the notion that all common-law duties owed 
by government actors were somehow constitutionalized by 
the Fourteenth Amendment. Jailers may owe a special duty 
of care to those in their custody under state tort law, see 
Restatement (Second) of Torts 314A(4) (1965), but for the 
reasons previously stated we reject the contention that the 



336 OCTOBER TERM, 1985 

STEVENS, J., concurring in judgments 474 U. S. 

Due Process Clause of the Fourteenth Amendment embraces 
such a tort law concept. Petitioner alleges that he was in- 
jured by the negligence of respondent, a custodial official 
at the city jail. Whatever other provisions of state law or 
general jurisprudence he may rightly invoke, the Fourteenth 
Amendment to the United States Constitution does not af- 
ford him a remedy. 

Affirmed. 

JUSTICE MARSHALL concurs in the result. 

JUSTICE BLACKMUN, concurring in the judgment. 
I concur in the judgment. See my opinion in dissent in 
Davidson v. Cannon, post, p. 349. 

JUSTICE STEVENS, concurring in the judgments.* 
Two prisoners raise similar claims in these two cases. 
Both seek to recover for personal injuries suffered, in part, 
from what they allege was negligence by state officials. 
Both characterize their injuries as "deprivations of liberty" 
and both invoke 42 U. S. C. 1983 as a basis for their claims. 
Prisoner Roy Daniels was injured when he slipped on a 
newspaper and pillows left on a stairway in the Virginia jail 
where he is incarcerated; he alleges state negligence in the 
presence of the objects on the stairs. Prisoner Robert Da- 
vidson suffered injury when he was attacked by another in- 
mate in the New Jersey prison where he is incarcerated; he 
alleges (and proved at trial) state negligence in the failure of 
prison authorities to prevent the assault after he had written 
a note expressing apprehension about the inmate who ulti- 
mately assaulted him. I agree with the majority that peti- 
tioners cannot prevail under 1983. I do not agree, how- 
ever, that it is necessary either to redefine the meaning of 
"deprive" in the Fourteenth Amendment, 1 or to repudiate 

*[This opinion applies also to Davidson v. Cannon et al., No. 84-6470, 
post, p. 344.] 

1 "[N]or shall any State deprive any person of life, liberty, or property, 
without due process of law . . . ." U. S. Const., Amdt. 14. 



DANIELS v. WILLIAMS 337 

327 STEVENS, J., concurring in judgments 

the reasoning of Parratt v. Taylor, 451 U. S. 527 (1981), to 
support this conclusion. 

We should begin by identifying the precise constitutional 
claims that petitioners have advanced. It is not enough to 
note that they rely on the Due Process Clause of the Four- 
teenth Amendment, for that Clause is the source of three dif- 
ferent kinds of constitutional protection. First, it incorpo- 
rates specific protections defined in the Bill of Rights. Thus, 
the State, as well as the Federal Government, must comply 
with the commands in the First 2 and Eighth 3 Amendments; 
so too, the State must respect the guarantees in the Fourth, 4 
Fifth, 5 and Sixth 6 Amendments. Second, it contains a sub- 
stantive component, sometimes referred to as "substantive 
due process," which bars certain arbitrary government ac- 
tions "regardless of the fairness of the procedures used to im- 
plement them." Ante, at 331. 7 Third, it is a guarantee of 
fair procedure, sometimes referred to as "procedural due 
process": the State may not execute, imprison, or fine a de- 
fendant without giving him a fair trial, 8 nor may it take prop- 
erty without providing appropriate procedural safeguards. 9 

The type of Fourteenth Amendment interest that is impli- 
cated has important effects on the nature of the constitutional 
claim and the availability of 1983 relief. If the claim is in 



2 See, e. g., Douglas v. Jeannette, 319 U. S. 157 (1943). 

3 See, e. g, Robinson v. California, 370 U. S. 660 (1962). 

4 See, e. g., Mapp v. Ohio, 367 U. S. 643 (1961). 

5 See, e. g., Malloy v. Hogan, 378 U. S. 1 (1964) (right to protection 
from compelled self-incrimination applies to States); Bent on v. Maryland, 
395 U. S. 784 (1969) (right to protection from double jeopardy applies to 
States). 

6 See, e. g., Duncan v. Louisiana, 391 U. S. 145 (1968) (right to jury 
trial applies to States) 

7 See also Moore v East Cleveland, 431 U. S. 494 (1977); Youngberg v. 
Romeo, 457 U. S. 307 (1982). 

8 See, e. g., Groppi v. Leslie, 404 U. S. 496 (1972), /// re Oliver, 333 
U. S. 257 (1948). 

9 See, e, g., Fuentes v. Shevin, 407 U. S. 67 (1972). 



338 OCTOBER TERM, 1985 

STEVENS, J., concurring- in judgments 474 U. S. 

the first category (a violation of one of the specific constitu- 
tional guarantees of the Bill of Rights), a plaintiff may invoke 
1983 regardless of the availability of a state remedy. 10 As 
explained in Monroe v. Pape, 365 U. S. 167 (1961), this con- 
clusion derives from the fact that the statute the Ku Klux 
Act of 1871 was intended to provide a federal remedy for 
the violation of a federal constitutional right. Thus, when 
the Fourth Amendment is violated, as in Pape, the provision 
of an independent federal remedy under 1983 is necessary 
to satisfy the purpose of the statute. 

Similarly, if the claim is in the second category (a violation 
of the substantive component of the Due Process Clause), a 
plaintiff may also invoke 1983 regardless of the availability 
of a state remedy. 11 For, in that category, no less than with 
the provisions of the Bill of Rights, if the Federal Constitu- 
tion prohibits a State from taking certain actions "regardless 
of the fairness of the procedures used to implement them," 
the constitutional violation is complete as soon as the prohib- 
ited action is taken; the independent federal remedy is then 
authorized by the language and legislative history of 1983. 

A claim in the third category a procedural due process 
claim is fundamentally different. In such a case, the depri- 
vation may be entirely legitimate a State may have every 
right to discharge a teacher or punish a student but the 
State may nevertheless violate the Constitution by failing to 
provide appropriate procedural safeguards. The constitu- 
tional duty to provide fair procedures gives the citizen the 
opportunity to try to prevent the deprivation from happen- 
ing, but the deprivation itself does not necessarily reflect any 



10 See, e. g., Monroe v. Pape, 365 U. S. 167 (1961) (1983 action for 
Fourth Amendment violation); Smith v. Wade, 461 U. S. 30 (1983) ( 1983 
action for Eighth Amendment violation). See generally McNeese v. Board 
of Education, 373 U. S. 668, 672 (1963) ( 1983 is "supplementary to any 
remedy any State might have"). 

11 Cf. Parratt v. Taylor, 451 U. S. 527, 545 (1981) (BLACKMUN, J., con- 
curring); Roe v. Wade, 410 U. S. 113 (1973). 



DANIELS v. WILLIAMS 339 

327 STEVENS, J., concurring in judgments 

"abuse" of state power. Similarly, a deprivation may be the 
consequence of a mistake or a negligent act, and the State 
may violate the Constitution by failing to provide an appro- 
priate procedural response. In a procedural due process 
claim, it is not the deprivation of property or liberty that is 
unconstitutional; it is the deprivation of property or liberty 
without due process of law without adequate procedures. 
Thus, even though the State may have every right to de- 
prive a person of his property or his liberty, the individual 
may nevertheless be able to allege a valid 1983 due process 
claim, perhaps because a predeprivation hearing must be 
held, 12 or because the state procedure itself is fundamentally 
flawed. 13 So too, even though a deprivation may be unau- 
thorized, a procedural due process claim may be raised if it 
challenges the State's procedures for preventing or redress- 
ing the deprivation. However, a complaint does not state a 
valid procedural due process objection and a valid 1983 
claim if it does not include a challenge to the fundamental 
fairness of the State's procedures. In consequence, when 
a predeprivation hearing is clearly not feasible, 14 when the 
regime of state tort law provides a constitutionally unobjec- 
tionable system of recovery for the deprivation of property or 
liberty, and when there is no other challenge to the State's 
procedures, a valid 1983 claim is not stated. For, unlike 
cases in the other two categories those in which the alleged 



12 See, e. g., Louderrnill v. Cleveland Board of Education, 470 U. S. 532 
(1985); Carey v. Piphus, 435 U. S. 247 (1978); Goss v. Lopez, 419 U. S. 565 
(1975). Cf. Groppi, supra. 

13 Cf. Logan v. Zimmerman Brush Co., 455 U. S. 422, 436 (1982) 
(postdeprivation state remedy is inadequate when challenge is to "the state 
system itself"); Baker v. McCollan, 443 U. S. 137, 156 (1979) (STEVENS, 
J., dissenting). 

"See Hudson v. Palmer, 468 U. S. 517, 533 (1984) ("[W]hen depriva- 
tions of property are effected through random and unauthorized conduct 
of a state employee, predeprivation procedures are simply 'impracticable' 
since the state cannot know when such deprivations will occur"); Parratt v. 
Taylor, supra. 



340 OCTOBER TERM, 1985 

STEVENS, J., concurring in judgments 474 U. S. 

deprivation violates a substantive federal right if a pro- 
cedural due process claim lacks a colorable objection to the 
validity of the State's procedures, no constitutional violation 
has been alleged. 16 

Petitioners' claims are not of the first kind. Neither Dan- 
iels nor Davidson argues in this Court that the prison au- 
thorities' actions violated specific constitutional guarantees 
incorporated by the Fourteenth Amendment. Neither now 
claims, for instance, that his rights under the Eighth Amend- 
ment were violated. Similarly, I do not believe petitioners 
have raised a colorable violation of "substantive due proc- 
ess." 16 Rather, their claims are of the third kind: Daniels 
and Davidson attack the validity of the procedures that Vir- 
ginia and New Jersey, respectively, provide for prisoners 
who seek redress for physical injury caused by the negligence 
of corrections officers. 

I would not reject these claims, as the Court does, by 
attempting to fashion a new definition of the term "depriva- 

16 See id., at 543-544. 

16 Davidson explicitly disavows a substantive due process claim. See 
Brief for Petitioner in No. 84-6470, p. 7 ("[Petitioner frames his claim 
here purely in terms of procedural due process"). At oral argument, coun- 
sel for Daniels did suggest that he was pursuing a substantive due process 
claim. Tr. of Oral Arg. in No. 84-5872, p. 22. However, the Court of 
Appeals viewed Daniels' claim as a procedural due process argument, see 
748 F. 2d 229, 230, n. 1 (CA4 1984) ("There is no claim of any substantive 
due process violation"), and Daniels did not dispute this characterization in 
his petition for certiorari or in his brief on the merits. 

In any event, to the extent that petitioners' arguments about the special 
obligations of prison officials may be read as a substantive due process 
claim, I agree with the Court, ante, at 335-336, that the sheriff's "special 
duty of care" recognized in South v. Maryland, 18 How. 396 (1856), does 
not have its source in the Federal Constitution. In these circumstances, it 
seems to me, the substantive constitutional duties of prison officials to pris- 
oners are defined by the Eighth Amendment, not by substantive due proc- 
ess. Cf. United States ex rel. Miller v. Twomey, 479 F. 2d 701, 719-721 
(CA7 1973) (analyzing prison officials' responsibilities to prevent inmate 
assaults under the Eighth Amendment), cert, denied sub nom. Gutierrez 
v. Department of Public Safety of Illinois, 414 U. S. 1146 (1974). 



DANIELS v. WILLIAMS 341 

327 STEVENS, J., concurring in judgments 

tion" and excluding negligence from its scope. No serious 
question has been raised about the presence of "state action" 
in the allegations of negligence, 17 and the interest in freedom 
from bodily harm surely qualifies as an interest in "liberty." 
Thus, the only question is whether negligence by state actors 
can result in a deprivation. "Deprivation," it seems to me, 
identifies, not the actor's state of mind, but the victim's 
infringement or loss. The harm to a prisoner is the same 
whether a pillow is left on a stair negligently, recklessly, or 
intentionally; so too, the harm resulting to a prisoner from 
an attack is the same whether his request for protection is 
ignored negligently, recklessly, or deliberately. In each in- 
stance, the prisoner is losing being "deprived" of an as- 
pect of liberty as the result, in part, of a form of state action. 

Thus, I would characterize each loss as a "deprivation" of 
liberty. Because the cases raise only procedural due process 
claims, however, it is also necessary to examine the nature of 
petitioners' challenges to the state procedures. To prevail, 
petitioners must demonstrate that the state procedures for 
redressing injuries of this kind are constitutionally inade- 
quate. Petitioners must show that they contain a defect so 
serious that we can characterize the procedures as funda- 
mentally unfair, a defect so basic that we are forced to 
conclude that the deprivation occurred without due process. 

Daniels' claim is essentially the same as the claim we 
rejected in Parratt. The Court of Appeals for the Fourth 
Circuit determined that Daniels had a remedy for the claimed 
negligence under Virginia law. Although Daniels vigorously 
argues that sovereign immunity would have defeated his 
claim, the Fourth Circuit found to the contrary, and it is our 
settled practice to defer to the Courts of Appeals on ques- 



17 Respondents in Davidson do raise a state-action objection in one sen- 
tence, Brief for Respondents in No. 84-6470, p. 13, n., but that bare refer- 
ence is inadequate to mount a challenge to the undisturbed District Court 
finding of state action. 



342 OCTOBER TERM, 1985 

STEVENS, J., concurring in judgments 474 U. S. 

tions of state law. 18 It is true that Parratt involved an injury 
to "property" and that Daniels' case involves an injury to 'lib- 
erty," but, in both cases, the plaintiff claimed nothing more 
than a "procedural due process" violation. In both cases, a 
predeprivation hearing was definitionally impossible. 19 And, 
in both cases, the plaintiff had state remedies that permitted 
recovery if state negligence was established. Thus, a 
straightforward application of Parratt defeats Daniels' claim. 
Davidson's claim raises a question not specifically ad- 
dressed in Parratt. According to the Third Circuit, no state 
remedy was available because a New Jersey statute prohibits 
prisoner recovery from state employees for injuries inflicted 
by other prisoners. Thus, Davidson puts the question 
whether a state policy of noncompensability for certain types 
of harm, in which state action may play a role, renders a state 
procedure constitutionally defective. In my judgment, a 
state policy that defeats recovery does not, in itself, carry 
that consequence. Those aspects of a State's tort regime 
that defeat recovery are not constitutionally invalid, so long 
as there is no fundamental unfairness in their operation. 
Thus, defenses such as contributory negligence or statutes of 
limitations may defeat recovery in particular cases without 
raising any question about the constitutionality of a State's 
procedures for disposing of tort litigation. Similarly, in my 
judgment, the mere fact that a State elects to provide some 
of its agents with a sovereign immunity defense in certain 
cases does not justify the conclusion that its remedial system 
is constitutionally inadequate. There is no reason to believe 
that the Due Process Clause of the Fourteenth Amendment 



18 See Haring v. Prosise, 462 U. S. 306, 314, n. 8 (1983); Leroy v. Great 
Western United Corp., 443 U. S. 173, 181, n. 11 (1979); Bishop v. Wood, 
426 U. S. 341, 345-347 (1976); Propper v. Clark, 337 U. S. 472, 486-487 
(1949). 

19 It borders on the absurd to suggest that a State must provide a hear- 
ing to determine whether or not a corrections officer should engage in neg- 
ligent conduct. 



DANIELS v. WILLIAMS 343 

327 STEVENS, J., concurring in judgments 

and the legislation enacted pursuant to 5 of that Amend- 
ment should be construed to suggest that the doctrine of sov- 
ereign immunity renders a state procedure fundamentally 
unfair. 20 Davidson's challenge has been only to the fact of 
sovereign immunity; he has not challenged the difference in 
treatment of a prisoner assaulted by a prisoner and a non- 
prisoner assaulted by a prisoner, and I express no comment 
on the fairness of that differentiation. 

Thus, although I believe that the harms alleged by Daniels 
and proved by Davidson qualify as deprivations of liberty, I 
am not persuaded that either has raised a violation of the Due 
Process Clause of the Fourteenth Amendment. I therefore 
concur in the judgments. 



20 In Martinez v. California, 444 U. S. 277 (1980), we held that Califor- 
nia's immunity statute did not violate the Due Process Clause simply be- 
cause it operated to defeat a tort claim arising under state law. The fact 
that an immunity statute does not give rise to a procedural due process 
claim does not, of course, mean that a State's doctrine of sovereign immu- 
nity can protect conduct that violates a federal constitutional guarantee; 
obviously it cannot, see Martinez, supra, at 284, n. 8, quoting Hampton v. 
Chicago, 484 F. 2d 602, 607 (CA7 1973), cert, denied, 415 U. S. 917 (1974). 



344 OCTOBER TERM, 1985 

Syllabus 474 U. S. 

DAVIDSON v. CANNON ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 
THE THIRD CIRCUIT 

No. 84-6470. Argued November 6, 1985 Decided January 21, 1986 

When threatened by a fellow inmate in the New Jersey State Prison, peti- 
tioner sent a note reporting the incident to respondent Assistant Super- 
intendent of the prison, who read the note and sent it to respondent Cor- 
rections Sergeant, who, while informed of its contents, did not read it or 
notify other officers of the threat and forgot about it by the time he went 
off duty. Two days later the inmate attacked petitioner and inflicted 
serious injuries. Petitioner then brought a damages action against re- 
spondents in Federal District Court under 42 U. S. C. 1983, claiming 
that they had violated his rights under, inter alia, the Fourteenth 
Amendment by negligently failing to protect him from the other inmate. 
After a bench trial, the District Court awarded damages, holding that 
petitioner was deprived of his liberty interest in personal security as a 
result of respondents' negligence and that such deprivation was without 
due process because of a New Jersey statute that protects prison officials 
from liability for injuries caused by one prisoner to another. The Court 
of Appeals reversed. 

Held: The protections of the Due Process Clause of the Fourteenth 
Amendment, whether procedural or substantive, are not triggered by 
lack of due care by prison officials. Daniels v. Williams, ante, p. 327. 
Respondents' lack of due care, while leading to serious injuries, simply 
does not approach the sort of abusive government conduct that the Due 
Process Clause was designed to prevent. Pp. 347-348. 
752 F. 2d 817, affirmed. 

REHNQUIST, J., delivered the opinion of the Court, in which BURGER, 
C. J., and WHITE, POWELL, and O'CONNOR, JJ., joined. STEVENS, J., 
filed an opinion concurring in the judgment, ante, p. 336. BRENNAN, J., 
filed a dissenting opinion, post, p. 349. BLACKMUN, J. , filed a dissenting 
opinion, in which MARSHALL, J., joined, post, p. 349. 

James Douglas Crawford argued the cause and filed a brief 
for petitioner. 

Madeleine Waters Mansier, Deputy Attorney General of 
New Jersey, argued the cause for respondents. With her on 



DAVIDSON u CANNON 345 

344 Opinion of the Court 

the brief were Irwin /. Kimmelman, Attorney General, and 
James J. Ciancia, Assistant Attorney General. 

Acting Solicitor General Fried argued the cause for the 
United States as amicus curiae urging affirmance. With 
him on the brief were Acting Assistant Attorney General 
Willard, Deputy Solicitor General Geller, Barbara L. Her- 
wig, and Douglas N. Letter.* 

JUSTICE REHNQUIST delivered the opinion of the Court. 

Petitioner sued prison officials seeking damages under 42 
U. S. C. 1983 for injuries he suffered when they negligently 
failed to protect him from another inmate. On December 19, 
1980, petitioner was threatened by one McMillian, a fellow 
inmate at the New Jersey State Prison at Leesburg. Peti- 
tioner sent a note reporting the incident that found its way 
to respondent Cannon, the Assistant Superintendent of the 
prison, who read the note and sent it on to respondent James, 
a Corrections Sergeant, t Cannon subsequently testified 
that he did not view the situation as urgent because on previ- 
ous occasions when petitioner had a serious problem he had 
contacted Cannon directly. 

James received the note at about 2 p.m. on December 19, 
and was informed of its contents. James then attended to 
other matters, which he described as emergencies, and left 
the note on his desk unread. By the time he left the prison 
that evening James had forgotten about the note, and since 

*Fred E. Inbau, James P. Manak, Wayne W. Schmidt, Darnel B. 
Hales, and Courtney E, Evans filed a brief for Americans for Effective 
Law Enforcement, Inc. , et al. as amici curiae urging affirmance. 

tThe note, addressed to a civilian hearing officer, said: 

"When I went back to the unit after seeing you McMillian was on the 
steps outside the unit. When I was going past him he told me Til fuck you 
up you old mother-fucking fag/ Go up to your cell, I be right there. 

"I ignored this and went to another person's cell and thought about it. 
Then I figured I should tell you so 'if anything develops you would be 
aware. 

"I'm quite content to let this matter drop but evidently McMillian isn't. 

"Thank you, R. Davidson." 752 F. 2d 817, 819 (CAS 1984). 



346 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

neither he nor Cannon worked on December 20 or 21, the offi- 
cers on duty at that time had not been informed of the threat. 
Petitioner took no steps other than writing the note to alert 
the authorities that he feared an attack, nor did he request 
protective custody. He testified that he did not foresee an 
attack, and that he wrote the note to exonerate himself in the 
event that McMillian started another fight. He also testified 
that he wanted officials to reprimand McMillian in order 
to forestall any future incident. On Sunday, December 21, 
McMillian attacked petitioner with a fork, breaking his nose 
and inflicting other wounds to his face, neck, head, and body. 
Petitioner brought this 1983 suit in the United States Dis- 
trict Court for the District of New Jersey, claiming that re- 
spondents (and two others) had violated his constitutional 
rights under the Eighth and Fourteenth Amendments. 
After a bench trial, the District Court held that petitioner 
had not established an Eighth Amendment violation '^because 
[respondents! did not act with deliberate or callous indiffer- 
ence to [petitioner's] needs and because the incident com- 
plained of was a single attack." App. 89. The court also 
found, however, that respondents "negligently failed to take 
reasonable steps to protect [petitioner], and that he was 
injured as a result." Ibid. Petitioner was thereby de- 
prived, see Parratt v. Taylor, 451 U. S. 527, 536-537 (1981), 
of his liberty interest in personal security, see Ingrakam v. 
Wright, 430 U. S. 651, 673 (1977); and because New Jersey 
law provides that "[n]either a public entity nor a public em- 
ployee is liable for . . . any injury caused by ... a prisoner to 
any other prisoner," N. J. Stat. Ann. 59:5-2(b)(4) (1982), 
the court concluded that the deprivation was without due 
process. Petitioner was awarded compensatory damages of 
$2,000. 

The Court of Appeals for the Third Circuit, hearing the 
case en bane, reversed. 752 F. 2d 817 (1984). While accept- 
ing the District Court's conclusion that respondents had been 
negligent, and agreeing that the attack on petitioner impli- 



DAVIDSON v. CANNON 347 

344 Opinion of the Court 

cated a recognized liberty interest, the majority held that 
respondents' negligence did not work a "deprivation" of that 
interest within the meaning of the Due Process Clause. The 
court conceded that language in Parratt supported .the Dis- 
trict Court's position that merely negligent conduct causing 
injury could constitute a Fourteenth Amendment "depriva- 
tion," but concluded that "Parratt does not so hold." 752 F. 
2d, at 826. Accordingly, the court ruled that petitioner had 
failed to make out a violation of his procedural or substantive 
due process rights, stating that 1983 provides no remedy 
"for the type of negligence found in this case." Id., at 829. 

Two judges who joined the majority opinion also wrote 
separately to suggest that even if respondents' negligence 
had "deprived" petitioner of liberty, the State's decision not 
to provide a remedy, in view of its strong interest in protect- 
ing its prison officials from liability, did not violate due proc- 
ess. Three judges dissented, essentially embracing the posi- 
tion of the District Court. 

We granted certiorari, 471 U. S. 1134 (1985), and set this 
case for oral argument with Daniels v. Williams, ante, 
p. 327. Finding the principles enunciated in Daniels con- 
trolling here, we affirm. 

In Daniels, we held that the Due Process Clause of the 
Fourteenth Amendment is not implicated by the lack of due 
care of an official causing unintended injury to life, liberty, 
or property. In other words, where a government official is 
merely negligent in causing the injury, no procedure for com- 
pensation is constitutionally required. In this case, peti- 
tioner does not challenge the District Court's finding that re- 
spondents " 'did not act with deliberate or callous indifference 
to [petitioner's] needs,'" 752 F. 2d, at 820. Instead, he 
claims only that respondents "negligently failed to protect 
him from another inmate." Brief for Petitioner 2. Daniels 
therefore controls. 

Respondents' lack of due care in this case led to serious in- 
jury, but that lack of care simply does not approach the sort 



348 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

of abusive government conduct that the Due Process Clause 
was designed to prevent. Daniels, ante, at 331-333. Far 
from abusing governmental power, or employing it as an in- 
strument of oppression, respondent Cannon mistakenly be- 
lieved that the situation was not particularly serious, and 
respondent James simply forgot about the note. The guar- 
antee of due process has never been understood to mean that 
the State must guarantee due care on the part of its officials. 
In an effort to limit the potentially broad sweep of his 
claim, petitioner emphasizes that he "does not ask this Court 
to read the Constitution as an absolute guarantor of his lib- 
erty from assault by a fellow prisoner, even if that assault is 
caused by the negligence of his jailers." Brief for Petitioner 
17. Describing his claim as one of "procedural due process, 
pure and simple," id., at 14, all he asks is that New Jersey 
provide him a remedy. But the Fourteenth Amendment 
does not require a remedy when there has been no "depriva- 
tion" of a protected interest. Petitioner's claim, based on re- 
spondents' negligence, is quite different from one involving 
injuries caused by an unjustified attack by prison guards 
themselves, see Johnson v. Glick, 481 F. 2d 1028 (CA2), 
(Friendly, J.), cert, denied sub nom. John v. Johnson, 414 
U. S. 1033 (1973), or by another prisoner where officials sim- 
ply stood by and permitted the attack to proceed, see Curtis 
v. Everette, 489 F. 2d 516 (CA3 1973), cert, denied sub nom. 
Smith v. Curtis, 416 U. S. 995 (1974). As we held in Dan- 
iels, the protections of the Due Process Clause, whether 
procedural or substantive, are just not triggered by lack 
of due care by prison officials. 

Accordingly, the judgment of the Court of Appeals for the 
Third Circuit is affirmed. 

It is so ordered. 

[For opinion of JUSTICE STEVENS concurring in the judg- 
ment, see ante, p. 336]. 



DAVIDSON v. CANNON 349 

344 BLACKMUN, J., dissenting 

JUSTICE BRENNAN, dissenting. 

I agree with the Court that merely negligent conduct by a 
state official, even though causing personal injury, does not 
constitute a deprivation of liberty under the Due Process 
Clause. I do believe, however, that official conduct which 
causes personal injury due to recklessness or deliberate indif- 
ference, does deprive the victim of liberty within the mean- 
ing of the Fourteenth Amendment. 

As JUSTICE BLACKMUN persuasively demonstrates in his 
dissent, the record in this case strongly suggests that the 
prison officials' failure to protect petitioner from attack 
was reckless and not merely negligent. Accordingly, like 
JUSTICE BLACKMUN, I would vacate the judgment and re- 
mand this case so that the Court of Appeals may review the 
District Court's holding that respondents' conduct was not 
reckless. 

JUSTICE BLACKMUN, with whom JUSTICE MARSHALL 
joins, dissenting. 

When the State of New Jersey put Robert Davidson in its 
prison, it stripped him of all means of self-protection. It for- 
bade his access to a weapon. N. J. Dept. of Corrections 
Standards 251.4.a.201 and .202. It forbade his fighting 
back. Standards 25 1.4. a. 002, .003, and .004. It blocked all 
avenues of escape. The State forced Davidson to rely solely 
on its own agents for protection. When threatened with vio- 
lence by a fellow inmate, Davidson turned to the prison offi- 
cials for protection, but they ignored his plea for help. As a 
result, Davidson was assaulted by another inmate. He suf- 
fered stab wounds on his face and body as well as a broken 
nose that required surgery. 

The Court nevertheless excuses the prison officials from 
liability under 42 U. S. C. 1983, holding that because the 
officials were "merely negligent in causing the injury" there 
was no "deprivation" of liberty without due process of law. 



350 OCTOBER TERM, 1985 

BLACKMUN, J., dissenting 474 U. S. 

Ante, at 347. It relies for this proposition and result on 
the easier companion case, Daniels v. Williams, ante, p. 327, 
which overrules in part Parratt v. Taylor, 451 U. S. 527 
(1981). In Daniels, also a 1983 suit, the Court holds that 
a pretrial detainee, allegedly injured when he slipped on 
a pillow negligently left on the jail stairs by a deputy, as a 
matter of law suffered no deprivation under the Fourteenth 
Amendment. 

While I concur in the judgment in Daniels, I do not join the 
Court in extending that result to this case. It is one thing to 
hold that a commonplace slip and fall, or the loss of a $23.50 
hobby kit, see Parratt v. Taylor, supra, does not rise to the 
dignified level of a constitutional violation. It is a somewhat 
different thing to say that negligence that permits antici- 
pated inmate violence resulting in injury, or perhaps leads to 
the execution of the wrong prisoner, does not implicate the 
Constitution's guarantee of due process. When the State in- 
carcerated Daniels, it left intact his own faculties for avoiding 
a slip and a fall. But the State prevented Davidson from 
defending himself, and therefore assumed some responsibil- 
ity to protect him from the dangers to which he was exposed. 
In these circumstances, I feel that Davidson was deprived of 
liberty by the negligence of the prison officials. Moreover, 
the acts of the state officials in this case may well have risen 
to the level of recklessness. I therefore dissent. 



Davidson broke up a fight between two other inmates. 
Two days later, on Friday, December 19, 1980, the three 
were brought before a prison disciplinary officer. Only one 
of the three, Gibbs, was found guilty of fighting. When 
Davidson and the other inmate, McMillian, returned to their 
unit, McMillian threatened Davidson. Davidson decided to 
report the threat, in part to exonerate himself in advance but 
primarily to get the prison officials to take precautions. 
App. 85 (District Court's findings of fact). See also id., at 



DAVIDSON v. CANNON 351 

344 BLACKMUN, J., dissenting 

75. Accordingly, Davidson reported the threat to Officer 
Garcia. Because McMillian had a history of prison assaults 
and fighting, id., at 33-34, 62, Garcia recognized the serious- 
ness of McMillian's threats. Garcia had Davidson relate the 
incident in writing. He then took Davidson's note, and told 
Davidson to return to his unit. 

Garcia delivered the note to respondent Cannon, Assistant 
Superintendent of the prison, and described its contents. 
Cannon did not think the threat serious because Davidson 
had not personally come to him to report it and because of the 
nature of the earlier fight. Id., at 44, 46. Cannon nonethe- 
less asked to speak to Davidson, but changed his mind when 
he learned that Davidson had already returned to his unit. 
Id. , at 42. Rather than take one of the usual preventive 
measures, such as separating the two inmates, placing David- 
son in protective custody, or attempting to ascertain the 
gravity of the threat by talking to the two, id. , at 44, Cannon 
simply told Garcia to pass the note along to respondent 
James, a Corrections Sergeant in the Internal Affairs Unit. 
Id., at 43. 

Garcia followed Cannon's order, giving the note to James 
at approximately 2:15 p.m., and informing James that it con- 
cerned a threat to Davidson by McMillian. Id., at 38-39. 
Because James was not ordered to act immediately, he de- 
cided there was no urgency. James also decided not to fol- 
low the normal procedure of interviewing the complainant. 
Id., at 50. James had two other tasks that he considered to 
be of higher priority, id., at 61 paperwork and a report of a 
knife in a cell. James described the latter as an emergency 
situation; he conceded, however, that that cell had been dou- 
ble locked so that it was secure. Id., at 51. James* regular 
shift ended at 4 p.m. , but he worked a second shift that night 
as Assistant Center Keeper until 10:30 p.m. The Center 
Keeper ordinarily investigates threats to inmates, but again 
James took no action on the threat to Davidson. Id., at 
54-55. The second shift was "normal and routine." Id., at 



352 OCTOBER TERM, 1985 

BLACKMUN, J., dissenting 474 U. S. 

59. James made at least two conscious decisions not to act 
on the note; by the time he left the prison, he had forgotten 
about it. Ibid. Had he remembered, he would have noti- 
fied the weekend shift. Id., at 59-60. A reported threat 
would not normally be ignored over the weekend. Id. , at 50. 

Meanwhile, the prison authorities had been alerted to the 
potential violence through another channel. On Wednesday, 
December 17, Officer Gibson wrote a "Special Report" stat- 
ing that an inmate source had told him the fight involving 
Davidson and McMillian was "not over yet." Gibson recom- 
mended keeping Davidson and Gibbs in the detention area 
for their own protection. Id., at 80. This recommendation 
was apparently ignored, as both Davidson and McMillian 
remained in their regular unit. 

Neither Cannon nor James worked during the weekend. 
Id., at 48. On Sunday, December 21, McMillian attacked 
Davidson, id., at 28, inflicting the injuries that gave rise to 
this suit. 

II 

The Court appears to recognize that the injuries to David- 
son (as well as that to Daniels in the companion case, ante, 
p. 327) implicates the "liberty" protected by the Fourteenth 
Amendment. It is well established that this liberty includes 
freedom from unjustified intrusions on personal security. 
Ingraham v. Wright, 430 U. S. 651, 673-674 (1977). In par- 
ticular, it includes a prisoner's right to safe conditions and to 
security from attack by other inmates. See Youngberg v. 
Romeo, 457 U. S. 307, 315-316 (1982). 1 Before a State can 



1 The Court in Youngberg v. Romeo held that an infringement of an insti- 
tutionalized mental patient's liberty interest in safe conditions would not 
violate due process if it resulted from a professionally acceptable judgment 
concerning the conditions of confinement. The essence of Davidson's com- 
plaint, of course, is that the judgments made by respondents were not ac- 
ceptable. Youngberg, in any event, is factually inapposite here, because 
Davidson like Daniels does not challenge the general conditions of his 
confinement. 



DAVIDSON v. CANNON 353 

344 BLACKMUN, J., dissenting 

deprive a prisoner of the liberty he retains after imprison- 
ment, it must afford him constitutionally adequate proce- 
dures. Vitek v. Jones, 445 U. S. 480, 493-494 (1980). 

Although Daniels' and Davidson's liberty interests were 
infringed, the Court holds that they were not "deprived" of 
liberty in the constitutional sense. In the past, we have 
held that the Fourteenth Amendment requires a "familiar 
two-stage analysis: We must first ask whether the asserted 
individual interests are encompassed within the Fourteenth 
Amendment's protection of "life, liberty or property.'" 
Ingraham v. Wright, 430 U. S., at 672 (emphasis added). If 
so, "we then must decide what procedures constitute 'due 
process of law/" Ibid. But I agree with the Court that a 
deprivation of liberty under the Fourteenth Amendment gen- 
erally requires more than a mere infringement of a liberty 
interest. I also agree that the purpose of the Fourteenth 
Amendment's Due Process Clause should guide our deter- 
mination of what actions constitute a deprivation of liberty 
under the Clause. A deprivation must contain some element 
of abuse of governmental power, for the "touchstone of due 
process is protection of the individual against arbitrary action 
of government." Wolff v. McDonnell, 418 U. S. 539, 558 
(1974). Finally, I agree that mere negligent activity ordi- 
narily will not amount to an abuse of state power. Where 
the Court today errs, in my view, is in elevating this sensible 
rule of thumb to the status of inflexible constitutional dogma. 
The Court declares that negligent activity can never impli- 
cate the concerns of the Due Process Clause. I see no justifi- 
cation for this rigid view. In some cases, by any reasonable 
standard, governmental negligence is an abuse of power. 2 
This is one of those cases. 



2 It is important not to confuse negligence with the absence of deliberate 
action. Negligent acts are often deliberate. W. Prosser, D. Dobbs, 
W. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 31, p. 171 
(5th. ed. 1984) (Prosser); see, e. g., The Germanic, 196 U. S. 589 (1905). 
Respondents Cannon and James did not act inadvertently. They deliber- 



354 OCTOBER TERM, 1985 

BLACKMUN, J., dissenting 474 U. S. 

It seems to me that when a State assumes sole responsibil- 
ity for one's physical security and then ignores his call for 
help, the State cannot claim that it did not know a subsequent 
injury was likely to occur. Under such circumstances, the 
State should not automatically be excused from responsibil- 
ity. In the context of prisons, this means that once the State 
has taken away an inmate's means of protecting himself from 
attack by other inmates, a prison official's negligence in pro- 
viding protection can amount to a deprivation of the inmate's 
liberty, at least absent extenuating circumstances. 3 Such 
conduct by state officials seems to me to be the "arbitrary 
action" against which the Due Process Clause protects. The 



ately decided that the threat to Davidson was not serious. Whether con- 
duct is denominated negligent or intentional can be a function of the likeli- 
hood that harm will occur. Where occurrence of the harm is substantially 
certain, the law imputes to the actor an intent to cause it. Restatement 
(Second) of Torts 8A, Comment 6 (1965). Where harm is less certain, we 
may call the actor negligent. Prosser, supra, at 170. In some circum- 
stances, the risk of injury is so high that the government's failure to make 
efforts to avoid the injury is unacceptable, even if its omission still might 
be categorized as negligence. 

*Estelle v. Gamble, 429 U. S. 97, 106 (1976), is not to the contrary. In 
Estelle, the Court held that a valid Eighth Amendment claim based on a 
prison physician's diagnosis or treatment required an allegation of delib- 
erate indifference rather than one of mere negligence. The requirement 
that deliberate indifference or wantonness be shown flows directly from 
the requirement of cruel and unusual conduct. The type of conduct about 
which the drafters of the Eighth Amendment were primarily concerned in- 
cluded " 'torture[s]' and other *barbar[ous]' methods of punishment" (quota- 
tions and citation omitted). Id., at 102. As is shown in the text, infra, 
the concerns underlying the Due Process Clause are broader than those 
underlying the Eighth Amendment. 

A prison is not the only setting in which governmental negligence may 
amount to an abuse of power. If police officers arrest a motorist on the 
freeway and leave his young children alone in the car by the side of the 
road on a cold night, any resulting injury to the children might well consti- 
tute a "deprivation" within the meaning of the Fourteenth Amendment. 
Cf. White v. Rochford, 592 F. 2d 381 (CA7 1979). 



DAVIDSON v. CANNON 355 

344 BLACKMUN, J., dissenting 

officials' actions in such cases thus are not remote from the 
purpose of the Due Process Clause and 1983. 4 

Moreover, this case does not raise the concern noted in 
Daniels, ante, at 332, that "[t]he only tie between the facts 
. . . and anything governmental in nature" is the identity of 
the parties. In Daniels, the negligence was only coinci- 
dentally connected to an inmate-guard relationship; the same 
incident could have occurred on any staircase. Daniels in jail 
was as able as he would have been anywhere else to protect 
himself against a pillow on the stairs. The State did not pro- 
hibit him from looking where he was going or from taking 
care to avoid the pillow. 6 

In contrast, where the State renders a person vulnerable 
and strips him of his ability to defend himself, an injury that 
results from a state official's negligence in performing his 
duty is peculiarly related to the governmental function. 
Negligence in such a case implicates the " '[m]isuse of power, 
possessed by virtue of state law and made possible only be- 
cause the wrongdoer is clothed with the authority of state 
law.'" Monroe v. Pape, 365 U. S. 167, 184 (1961), quoting 
United States v. Classic, 313 U. S. 299, 326 (1941). The de- 
liberate decision not to protect Davidson from a known threat 



4 In adopting the predecessor of 1983, Congress sought a remedy 
"against those who representing a State in some capacity were unable or 
unwilling to enforce a state law." Monroe v. Pape, 365 U. S. 167, 176 
(1961) (emphasis in original). 

5 While negligence of prison officials can constitute a due process viola- 
tion, general conditions of confinement do not ordinarily give rise to the 
increased standard of care discussed above. Prison conditions are typi- 
cally part of the State's legitimate restraint of liberty as a function of pun- 
ishing convicted persons. See Rhodes v. Chapman, 452 U. S. 337 (1981). 
"Traditionally, this has meant confinement in a facility which, no matter 
how modern or how antiquated, results in restricting the movement of a 
detainee in a manner in which he would not be restricted if he simply were 
free to walk the streets pending trial." Bell v. Wolfish, 441 U. S. 520, 537 
(1979). See also Block v. Rutherford, 468 U. S. 576 (1984). 



356 OCTOBER TERM, 1985 

BLACKMUN, J., dissenting 474 U. S. 

was directly related to the often violent life of prisoners. 
And protecting inmates from attack is central to one of the 
State's primary missions in running a prison the mainte- 
nance of internal security. See Hudson v. Palmer, 468 
U. S. 517, 524 (1984). 

The Fourteenth Amendment is not "trivialized," see Dan- 
iels, ante, at 332, by recognizing that in some situations neg- 
ligence can lead to a deprivation of liberty. On the contrary, 
excusing the State's failure to provide reasonable protection 
to inmates against prison violence demeans both the Four- 
teenth Amendment and individual dignity. 6 

Ill 

Even were I to accept the Court's rigid view of what con- 
stitutes a deprivation, I would not vote to affirm the judg- 
ment of the Court of Appeals. Although the District Court 
ruled that the prison officials' conduct here was not reckless, 
there is substantial reason to doubt that conclusion. Since 
the Court of Appeals did not review the recklessness holding, 
I would remand the case for that review. 

The Court has previously indicated that prison officials act 
recklessly when they disregard the potential for violence be- 
tween a known violent inmate and a known likely victim. In 
Smith v. Wade, 461 U. S. 30 (1983), the Court recognized 
that a prison guard had acted recklessly in placing a known 
violent inmate in a cell shared by the previously victimized 
plaintiff and another inmate, without attempting to locate 
an empty cell nearby. The plaintiff, who had recently been 
removed from protective custody, was assaulted by his cell- 
mates. It is far from clear that the officials in the present 
case were any less reckless. 



6 The Court's notion of trivialization is especially difficult to understand 
given its recognition that negligent behavior may violate other constitu- 
tional provisions. See United States v. Leon, 468 U. S. 897, 919-923, and 
n. 23 (1984) (Fourth Amendment). 



DAVIDSON u CANNON 357 

344 BLACKMUN, J., dissenting 

Even if respondents' conduct ordinarily would be consid- 
ered only negligent, the forewarning here changes the con- 
stitutional complexion of the case. When officials have actual 
notice of a prisoner's need for physical protection, " 'admin- 
istrative negligence can rise to the level of deliberate indif- 
ference to or reckless disregard for that prisoner's safety.'" 
Layne v. Vinzant, 657 F. 2d 468, 471 (CAl 1981), quoting 
West v. Rowe, 448 F. Supp. 58, 60 (ND 111. 1978). See also 
Matzker v. Herr, 748 F. 2d 1142, 1149 (CA7 1984); Miller 
v. Soletn, 728 F. 2d 1020, 1024-1025 (CA8), cert, denied, 
469 U. S. 841 (1984). Cf. Baker v. McCollan, 443 U. S. 137, 
148 (1979) (concurring opinion) (sheriff who failed to adopt 
procedures for identifying arrestees was negligent rather 
than reckless when he had not previously been notified of the 
legitimate need for or duty to adopt such procedures). 

Respondents "had the responsibility to care for plaintiff's 
safety, actual notice of the threat by an inmate with a known 
history of violence, and an opportunity to prevent harm to 
plaintiff." App. 89 (District Court's conclusions of law). 
Both respondents knew that McMillian had threatened Da- 
vidson after the fight and that Davidson had reported the 
threat immediately. Although Cannon knew that McMillian 
was a troublemaker, id., at 41, he nonetheless chose to think 
that the situation was not serious. Id., at 42. Likewise, 
James decided to attend to other matters during the entire 
eight hours he worked after receiving the note. Id., at 
86-87. Cannon and James intentionally delayed protecting 
Davidson's personal security in the face of a real and known 
possibility of violence. See Form v. White, 762 F. 2d 635, 
636-638 (CAS 1985). Cf. Estelle v. Gamble, 429 U. S. 97, 
104-105 (1976) (intentional delay in providing necessary med- 
ical care to seriously ill inmate can constitute deliberate indif- 
ference and thus violate the Eighth Amendment). Cannon 
did not check on what James had found; James turned his 
back on the violence brewing for the weekend. Yet the risk 



358 OCTOBER TERM, 1985 

BLACKMUN, J., dissenting 474 U. S. 

that harm would occur was substantial and obvious. Re- 
spondents' behavior very well may have been sufficiently 
irresponsible to constitute reckless disregard of Davidson's 
safety. 

Even if negligence is deemed categorically insufficient to 
cause a deprivation under the Fourteenth Amendment, reck- 
lessness must be sufficient. Recklessness or deliberate in- 
difference is all that a prisoner need prove to show that denial 
of essential medical care violated the Eighth Amendment's 
ban on cruel and unusual punishments. See Estelle v. Gam- 
ble, 429 U. S., at 104. The Due Process Clause provides 
broader protection than does the Eighth Amendment, see, 
e. g., Bell v. Wolfish, 441 U. S. 520 (1979); Ingraham v. 
Wright, 430 U. S. 651 (1977); Wolff v. McDonnell, 418 U. S., 
at 557-558; Revere v. Massachusetts General Hospital, 463 
U. S. 239, 244 (1983), so a violation of the Due Process Clause 
certainly should not require a more culpable mental state. 

IV 

The deprivation of Davidson's liberty interest violated the 
Fourteenth Amendment if it occurred "without due process 
of law." That condition is clearly satisfied. In both Parratt 
and Hudson, the Court held that where a deprivation of 
property was caused by a random and unauthorized act of a 
state official, it was impracticable for the State to provide 
process in advance and the State could satisfy procedural due 
process by a meaningful postdeprivation remedy, such as a 
tort suit. Parratt v. Taylor, 451 U. S., at 541; Hudson v. 
Palmer, 468 U. S., at 520-521. Even assuming the same is 
true for deprivations of liberty, New Jersey has failed to 
provide a meaningful postdeprivation remedy. By statute, 
the State has ruled: "Neither a public entity nor a public 
employee is liable for . . . any injury caused by ... a prisoner 
to any other prisoner." N. J. Stat. Ann. 59:5-2(b)(4) (West 
1982). The State acknowledges that it would have asserted 
the immunity statute as a defense to a state-court action and 



DAVIDSON u CANNON 359 

344 BLACKMUN, J., dissenting 

that Davidson's complaint would have been dismissed before 
being heard on the merits. Brief for Respondents 34. 

Conduct that is wrongful under 1983 surely cannot be 
immunized by state law. A State can define defenses, in- 
cluding immunities, to state-law causes of action, as long 
as the state rule does not conflict with federal law. Ferri 
v. Ackerman, 444 U. S. 193, 198 (1979). But permitting a 
state immunity defense to control in a 1983 action " 'would 
transmute a basic guarantee into an illusory promise; and the 
supremacy clause of the Constitution insures that the proper 
construction may be enforced.'" Martinez v. California, 
444 U. S. 277, 284, n. 8 (1980), quoting Hampton v. Chicago, 
484 F. 2d 602, 607 (CA7 1973), cert, denied, 415 U. S. 917 
(1974). It is irrelevant that state immunity as applied to 
defeat a state-law tort claim is constitutional, and may be 
construed as one aspect of the State's definition of a tort 
claim. See 444 U. S., at 281-282, and n. 5. Since 1983 
was designed to attack the misuse of state power, "govern- 
ment officials, as a class, could not be totally exempt, by 
virtue of some absolute immunity, from liability under its 
terms." Scheuer v. Rhodes, 416 U. S. 232, 243 (1974). 

Strong federal interests argue for allowing Davidson to 
bring his suit in the face of the New Jersey statute. See 
Ferri v. Ackerman, 444 U. S., at 198, n. 13. First, "a depri- 
vation of a constitutional right is significantly different from 
and more serious than a violation of a state right and there- 
fore deserves a different remedy even though the same act 
may constitute both a state tort and the deprivation of a con- 
stitutional right." Monroe v. Pape, 365 U. S., at 196 (con- 
curring opinion). Second, the legislative history of 1983's 
predecessor makes clear that Congress intended to alter the 
federal-state relationship with respect to the protection of 
federal rights. "The very purpose of 1983 was to interpose 
the federal courts between the States and the people, as 
guardians of the people's federal rights." Mitchum v. Fos- 
ter, 407 U. S. 225, 242 (1972). In particular, Congress in- 



360 OCTOBER TERM, 1985 

BLACKMUN, J., dissenting 474 U. S. 

tended "to provide a federal remedy where the state remedy 
... was not available in practice." Monroe v. Pope, 365 
U.S., at 174. 

Davidson has been denied "'an opportunity . . . granted at 
a meaningful time and in a meaningful manner' , . . 'for [a] 
hearing appropriate to the nature of the case,'" Logan v, 
Zimm&rmn Brush Co., 455 U. S. 422, 437 (1982) (citations 
omitted) (emphasis in original). Lacking a meaningful post- 
deprivation remedy in state court, Davidson was deprived of 
his liberty without due process of law. 

I therefore would reverse the judgment of the Court of 
Appeals and order that the District Court award of $2,000 
be reinstated. If I agreed with the rigid rule announced in 
Ddflieto-which I do not-I would vacate the judgment and 
remand the case for review of the District Court's finding 
that the respondents' conduct was not reckless. 



BOARD OF GOVERNORS, FRS u DIMENSION FINANCIAL 361 

Syllabus 

BOARD OF GOVERNORS OF THE FEDERAL 

RESERVE SYSTEM v. DIMENSION 

FINANCIAL CORP. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 
THE TENTH CIRCUIT 

No. 84-1274. Argued November 4, 1985 Decided January 22, 1986 

Section 2(c) of the Bank Holding Company Act of 1956 defines "bank" as 
any institution "which (1) accepts deposits that the depositor has a legal 
right to withdraw on demand, and (2) engages in the business of making 
commercial loans." In response to the increase in the number of argu- 
ably uncovered "nonbank banks" such as institutions offering custom- 
ers "NOW" (negotiable order of withdrawal) accounts, which function 
like traditional checking accounts but are subject to a seldom exercised 
right of the bank to require prior notice of withdrawal, and institutions 
offering "commercial loans substitutes" such as certificates of deposit 
and commercial paper the Federal Reserve Board amended its "Regu- 
lation Y" to redefine a "bank" as any institution that (1) accepts deposits 
that "as a matter of practice" are payable on demand and (2) engages 
in the business of making "any loan other than a loan to an individual 
for personal, family, household, or charitable purposes," including "the 
purchase of retail installment loans or commercial paper, certificates of 
deposit, bankers' acceptances, and similar money market instruments." 
In consolidated cases challenging the amended Regulation Y, the Court 
of Appeals set aside the regulation. 

Held: The Board did not act within its statutory authority in defining 
"banks" as it did. Pp. 366-375. 

(a) The Board's definition of "demand deposit" is not an accurate or 
reasonable interpretation of 2(c) of the Act. An institution that offers 
NOW accounts even if it engages in commercial lending is not a 
"bank" for the purposes of the Act because the requirement of prior 
notice of withdrawal withholds from the depositor any "legal right" to 
withdraw on demand. No amount of agency expertise can make the 
words "legal right" contained in 2(c) mean a right to do something "as 
a matter of practice." Pp. 367-368. 

(b) Nor is the Board's definition of "commercial loan" a reasonable 
interpretation of 2(c), under which an institution, even if it accepts 
deposits that the depositor has a legal right to withdraw on demand, is 
not a bank unless it "engages in the business of making commercial 
loans." The term "commercial loan" is used in the financial community 



362 OCTOBER TERM, 1985 

Syllabus 474 U. S. 

to describe the direct loan from a bank to a business customer for the 
purpose of providing funds needed by the customer in its business. 
Money market transactions, which the Board characterizes as "commer- 
cial loan substitutes," do not fall within the commonly accepted definition 
of "commercial loans." Nothing in the statutory language or the legisla- 
tive history indicates that the term "commercial loan" meant anything 
different from its accepted ordinary commercial usage. Pp. 368-373. 
(c) The Board's new definition cannot be supported on the asserted 
basis that it falls within the Act's "plain purpose" of regulating in- 
stitutions "functionally equivalent" to banks. The "plain purpose" of 
legislation is determined in the first instance with reference to the plain 
language of the statute itself. Here, rather than defining "bank" as 
an institution that offers the functional equivalent of banking services, 
Congress defined with specificity certain transactions that constitute 
banking subject to regulation. The statute may be imperfect, but the 
Board has no power to correct flaws that it perceives in the statute it is 
empowered to administer. Its rulemaking power is limited to adopting 
regulations to carry into effect Congress 1 will as expressed in the stat- 
ute. Pp. 373-375. 
744 F. 2d 1402, affirmed. 

BURGER, C. J., delivered the opinion of the Court, in which all other 
Members joined, except WHITE, J., who took no part in the consideration 
or decision of the case. 

Michael Bradfield argued the cause for petitioner. With 
him on the briefs was James V. Mattingly, Jr. 

Jeffrey S. Davidson argued the cause for respondents Di- 
mension Financial Corp. et al. With him on the brief were 
David G. Norrell, Glenn Summers, and William L. Mitchell. 
John D. Hawke, Jr. , argued the cause for respondents Amer- 
ican Financial Services Association et al. With him on the 
brief were Leonard H. Becker, Douglas L. Wald, and Louis 
A. Hellerstein.* 

*Briefs of amid curiae urging reversal were filed for the Conference of 
State Bank Supervisors et al. by Erwin N. Griswold, J. Thomas Cardwell, 
Laura N. Pringle, and James F. Bell; and for the Independent Bankers 
Association of America by Leonard J. Rubin. 

Briefs of amid curiae urging affirmance were filed for the United States 
by Acting Solicitor General Fried, Acting Assistant Attorney General 
Willard, Deputy Solicitor General Claiborne, John F. Cordes, Freddi 



BOARD OF GOVERNORS, FRS u DIMENSION FINANCIAL 363 
361 Opinion of the Court 

CHIEF JUSTICE BURGER delivered the opinion of the 
Court. 

We granted certiorari to decide whether the Federal Re- 
serve Board acted within its statutory authority in defining 
"banks" under 2(c) of the Bank Holding Company Act of 
1956, 12 U. S. C. 1841 et seq., as any institution that (1) 
accepts deposits that "as a matter of practice" are payable on 
demand and (2) engages in the business of making "any loan 
other than a loan to an individual for personal, family, house- 
hold, or charitable purposes" including "the purchase of 
retail installment loans or commercial paper, certificates of 
deposit, bankers' acceptances, and similar money market in- 
struments." 12 CFR 225.2(a)(l) (1985). 



Section 2(c) of the Bank Holding Company Act defines 
"bank" as any institution "which (1) accepts deposits that the 
depositor has a legal right to withdraw on demand, and (2) 
engages in the business of making commercial loans." 70 
Stat. 133, as amended, 12 U. S. C. 1841(c). 

This case is about so-called "nonbank banks" institutions 
that offer services similar to those of banks but which until 
recently were not under Board regulation because they con- 
ducted their business so as to place themselves arguably out- 
side the narrow definition of "bank" found in 2(c) of the Act. 
Many nonbank banks, for example, offer customers NOW 
(negotiable order of withdrawal) accounts which function like 
conventional checking accounts but because of prior notice 
provisions do not technically give the depositor a "legal right 
to withdraw on demand." 12 U. S. C. 1841(c)(l). Others 
offer conventional checking accounts, but avoid classification 
as "banks" by limiting their extension of commercial credit to 

Lipstein, and Mary Ann Gadziala; and for Sears, Roebuck and Co. et al. 
by Theodore B. Olson, Philip M. Knox, Jr., David Shute, and Peter J. 
Wallison. 



364 OCTOBER TERM, 1985 

Opinion of the Court 474 U.S. 

the purchase of money market instruments such as certifi- 
cates of deposit and commercial paper. 

In 1984, the Board promulgated rules providing that non- 
bank banks offering the functional equivalent of traditional 
banking services would thereafter be regulated as banks. 49 
Fed. Reg. 794. The Board accomplished this by amending 
its definition of a bank, found in "Regulation Y," in two 
significant respects. First, the Board defined "demand de- 
posit" to include deposits, like NOW accounts, which are "as 
a matter of practice" payable on demand. 12 CFR 225.2 
(a)(l)(A) (1985). Second, the Board defined the "making of a 
commercial loan" as "any loan other than a loan to an indi- 
vidual for personal, family, household, or charitable pur- 
poses," including "the purchase of retail installment loans or 
commercial paper, certificates of deposit, bankers' accep- 
tances, and similar money market instruments." 12 CFR 
225.2(a)(l)(B) (1985). 

B 

Cases challenging the amended Regulation Y were com- 
menced in three Circuits and were consolidated in the United 
States Court of Appeals for the Tenth Circuit. 1 The Court 
of Appeals set aside both the demand deposit and commercial 
loan aspects of the Board's regulation. 744 F. 2d 1402 
(1984). The court did not discuss the demand deposit regula- 
tion in detail, relying instead on the holding of an earlier 
Tenth Circuit case, First Bancorporation v. Board of Gover- 
nors, 728 F. 2d 434 (1984). In First Bancorporation, the 
court noted that the statutory definition of demand deposit is 
a deposit giving the depositor "a legal right to withdraw on 
demand." The court recognized that "withdrawals from 
NOW accounts are in actual practice permitted on demand." 
Id., at 436. But, since the depository institution retains a 
technical prior notice requirement it does not, for the pur- 

1 Cases filed in the United States Courts of Appeal for the Fourth 
and Sixth Circuits were transferred to the Tenth Circuit pursuant to 28 
U. S. C. 2112(a). 



BOARD OF GOVERNORS, FRS v. DIMENSION FINANCIAL 365 
361 Opinion of the Court 

poses of Congress* definition of "bank," accept "deposits that 
the depositor has a legal right to withdraw on demand. " 

The Court of Appeals also concluded that the Board's new 
definition of "commercial loan" was at odds with the Act. 
The legislative history revealed that in passing 2(c) Con- 
gress intended to exempt from Board regulation institutions 
whose only commercial credit activity was the purchase of 
money market instruments. Although agencies must be 
"able to change to meet new conditions arising within their 
sphere of authority," any expansion of agency jurisdiction 
must come from Congress and not the agency itself. 744 F. 
2d, at 1409. Accordingly, the Court of Appeals invalidated 
the amended regulations. 

We granted certiorari. 471 U. S. 1064 (1985). We 
affirm. 

II 

The Bank Holding Company Act of 1956, 12 U. S. C. 1841 
et seq., vests broad regulatory authority in the Board over 
bank holding companies "to restrain the undue concentration 
of commercial banking resources and to prevent possible 
abuses related to the control of commercial credit." S. Rep. 
No. 91-1084, p. 24 (1970). The Act authorizes the Board to 
regulate "any company which has control over any bank." 
12 U. S. C. 1841(a)(l). 

The breadth of that regulatory power rests on the Act's 
definition of the word "bank." The 1956 Act gave a simple 
and broad definition of bank: "any national banking associa- 
tion or any State bank, savings bank, or trust company." 12 
U. S. C. 1841(c) (1964 ed.). Experience soon proved that 
literal application of the statute had the unintended conse- 
quence of including within regulation industrial banks offer- 
ing limited checking account services to their customers. 
These institutions accepted "'funds from the public that are, 
in actual practice, repaid on demand/" Amend the Bank 
Holding Company Act of 1956: Hearings on S. 2253, S. 2418, 



366 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

and H. R. 7371 before a Subcommittee of the Senate Com- 
mittee on Banking and Currency, 89th Cong. , 2d Sess. , 447 
(1966) (letter to the Committee from J. L. Robertson, Mem- 
ber, Federal Reserve Board). Although including these 
institutions within the bank definition was the "correct legal 
interpretation" of the 1956 statute, the Board saw "no reason 
in policy to cover such institutions under this act." Ibid. 
Congress agreed, and accordingly amended the statutory 
definition of a bank in 1966, limiting its application to institu- 
tions that accept "deposits that the depositor has a legal right 
to withdraw on demand." 2 

The 1966 definition proved unsatisfactory because it too 
included within the definition of "bank" institutions that did 
not pose significant dangers to the banking system. Because 
one of the primary purposes of the Act was to "restrain 
undue concentration of ... commercial credit," it made little 
sense to regulate institutions that did not, in fact, engage 
in the business of making commercial loans. S. Rep. No. 
91-1084, p. 24 (1970). Congress accordingly amended the 
definition, excluding all institutions that did not "engag[e] 
in the business of making commercial loans." Since 1970 
the statute has provided that a bank is any institution that 

"(1) accepts deposits that the depositor has a legal right 
to withdraw on demand, and (2) engages in the business 
of making commercial loans." 12 U. S. C. 1841(c). 

Ill 

In 1984, the Board initiated rulemaking to respond to the 
increase in the number of nonbank banks. 3 After hearing 

2 The Senate Report explained, "the bill redefines ^bank' as an institu- 
tion that accepts deposits payable on demand (checking accounts), the com- 
monly accepted test of whether an institution is a commercial bank so as to 
exclude institutions like industrial banks and nondeposit trust companies." 
S. Rep. No. 1179, 89th Cong., 2d Sess., 7 (1966). 

8 The Board explained that since 1980 a large number of insurance, se- 
curities, industrial, and commercial organizations have acquired Federal 
Deposit Insurance Corporation insured financial institutions that are the 



BOARD OF GOVERNORS, PRS v. DIMENSION FINANCIAL 367 
361 Opinion of the Court 

views of interested parties, the Board found that nonbank 
banks pose three dangers to the national banking system. 
First, by remaining outside the reach of banking regulations, 
nonbank banks have a significant competitive advantage over 
regulated banks despite the functional equivalence of the 
services offered. Second, the proliferation of nonbank banks 
threatens the structure established by Congress for limiting 
the association of banking and commercial enterprises. See 
12 U. S. C. 1843(c)(8) (bank holding company can purchase 
nonbanking affiliate only if entity "closely related to bank- 
ing"). Third, the interstate acquisition of nonbank banks 
undermines the statutory proscription on interstate banking 
without prior state approval. 49 Fed. Reg. 794, 835-836 
(1984). Since the narrowed statutory definition required 
that both the demand deposit and the commercial loan 
elements be present to constitute the institution as a bank, 
the Board proceeded to amend Regulation Y redefining both 
elements of the test. We turn now to the two elements of 
this definition. 

A 

The Board amended its definition of "demand deposit" pri- 
marily to include within its regulatory authority institutions 
offering NOW accounts. A NOW account functions like a 
traditional checking account the depositor can write checks 
that are payable on demand at the depository institution. 
The depository institution, however, retains a seldom exer- 
cised but nevertheless absolute right to require prior notice 
of withdrawal. Under a literal reading of the statute, the 
institution even if it engages in full-scale commercial lend- 
ingis not a "bank" for the purposes of the Holding Com- 
pany Act because the prior notice provision withholds from 
the depositor any "legal right" to withdraw on demand. The 

functional equivalent of banks. The Board also noted that the power* of 
previously unregulated industrial banks "have substantially expanded . . . 
making them for all intents and purposes banks" for the purposes of the 
Bank Holding Company Act. 49 Fed. Reg., at 834 



368 OCTOBER TERM, 1985 

Opinion of the Court 474 U. S. 

Board in its amended definition closes this loophole by defin- 
ing demand deposits as a deposit, not that the depositor has 
a 'legal right to withdraw on demand," but a deposit that 
"as a matter of practice is payable on demand." 

In determining whether the Board was empowered to 
make such a change, we begin, of course, with the language 
of the statute. If the statute is clear and unambiguous "that 
is the end of the matter, for the court, as well as the agency, 
must give effect to the unambiguously expressed intent of 
Congress." Chevron U. S. A. Inc. v. Natural Resources 
Defense Council, Inc., 467 U. S. 837, 842-843 (1984). The 
traditional deference courts pay to agency interpretation is 
not to be applied to alter the clearly expressed intent of 
Congress. 

Application of this standard to the Board's interpretation 
of the "demand deposit" element of 2(c) does not require 
extended analysis. By the 1966 amendments to 2(c), Con- 
gress expressly limited the Act to regulation of institutions 
that accept deposits that "the depositor has a legal right to 
withdraw on demand." 12 U. S. C. 1841(c). The Board 
would now define "legal right" as meaning the same as "a 
matter of practice." But no amount of agency expertise 
however sound may be the result can make the words "legal 
right" mean a right to do something "as a matter of practice." 
A legal right to withdraw on demand means just that: a right 
to withdraw deposits without prior notice or limitation. In- 
stitutions offering NOW accounts do not give the depositor a 
legal right to withdraw on demand; rather, the institution it- 
self retains the ultimate legal right to require advance notice 
of withdrawal. The Board's definition of "demand deposit," 
therefore, is not an accurate or reasonable interpretation 
of 2(c). 

B 

Section 2(c) of the Act provides that, even if an institution 
accepts deposits that the depositor has a legal right to with- 
draw on demand, the institution is not a ba