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Full text of "United States Reports Volume 450 Cases Adjudged In The Supreme Court At October Term 1980"

UNITED STATES REPORTS 

VOLUME 450 



CASES ADJUDGED 

IN 

THE SUPREME COURT 

AT 

OCTOBER TERM, 1980 

KKBKUAKY 2U THROUGH APRIL 8, 1981 

WITH OPINION or INMVIPI'AI. Jinrricn m CHAMBHKN 



HBNRY C. UNI) 

KBPORTKR OF DBC18IOMS 



UNITED STATES 

GOVERNMENT PRINTING OFFICE 
WASHINGTON : 1982 



JUSTICES 

OF THE 

SUPREME COURT 

DURING THE TIME OF THESE REPORTS 



WARREN E. BURGER, CHIEF JUSTICE. 
WILLIAM J. BRENNAN, JR., ASSOCIATE JUSTICE. 
POTTER STEWART, 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. 



OFFICERS OF THE COURT 

WILLIAM FRENCH SMITH, ATTORNEY GENERAL. 
WADE H. McCREE, JR., SOLICITOR GENERAL. 
ALEXANDER L. STEVAS, CLERK. 
HENRY C. LIND, REPORTER or DECISIONS. 
ALFRED WONG, MARSHAL. 
ROGER F. JACOBS, LIBRARIAN. 



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, viz.: 

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

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

For the Second Circuit, THURGOOD MARSHALL, Associate 
Justice. 

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

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

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

For the Sixth Circuit, POTTER STEWART, 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. 

December 19, 1975. 



(For next previous allotment, see 404 U. S., p. v.) 



IV 



TABLE OF CASES REPOKTED 



NOTE: All undesignated references herein to the United States Code are 
to the 1976 edition. 

Cases reported before page 901 are those decided with opinions of the 
Court, or decisions per curiam. Cases reported on page 901 et seq. are 
those in which orders were entered. The opinion reported on page 1301 
is that written in chambers by an individual Justice 



Page 

Abdella v Shawano Lake Sanitary Dist. No. 1 1041 

Able v. Delaware 989 

Ackennan; Green v 966 

Acting Chief Probation Officer of Los Angeles Cty v. Chavez-Salido . 978 

Actors' Equity Assn.; H. A. Artists & Associates, Inc. v 963 

Adams v. D'Andrea 919 

Administrator, EPA; Mountain States Legal Foundation v 1050 

Administrator, EPA ; Pacific Legal Foundation v 914 

Administrator, EPA; Union Carbide Agricultural Products Co, v. . 996 

Aebischer v. United States 934 

Aetna Ins. Co. v. United States 1025 

Agrella v. Florida 910 

Aid Ins. Co. v. United States 1025 

Aiken v. United States 996 

Akbar v. Cannery 1002 

Alabama; Lake v 1004 

Alabama; Lomax v 1002 

Alabama; Sasser v 924 

Alabama; Taylor v 911 

Alabama; Thornton v 998 

Alaska ; McKee v 967 

Albernaz v. United States 333 

Alcoa SJ3. Co, v. M/V Nordic Regent 1050 

Alcorn; Missouri Pacific R. Co, v 998 

Aleem v. Moore 1044 

Alessi v. Raybestos-Manhattan, Inc 906 

Alestra v. Florida 924 

AJfaro v. Florida 923 

Alioto v. Williams 1012 

v 



VI 



TABLE OF CASES REPORTED 



Page 

Allison v United States 1044 

Allott v. Sicinski 920 

Allstate Ins. Co v. Hague 971 

Altemose Construction Co.; DeGideo v 971 

Amadeo v. Russeau 1035 

American Airlines; Hill v 983 

American Airlines; Montgomery v 920 

American Airlines; Rowbotham v 989 

American Brands, Inc ; Carson v 79 

American Broadcasting Cos. v WNCN Listeners Guild 582 

American City Bank & Trust Co.; DASCO, Inc. v 914 

American Electric Power Co. v. Mishawaka 960 

American Fruit Purveyors, Inc. v. United States 997 

Americans for Change; Federal Election Comm'n v 908 

Americans for Sep. of Church & State ; Valley Forge Christian Coll v . 909 

ASCAP; Columbia Broadcasting System, Inc. v 970,1050 

American Tobacco Co.; Carson v 79 

Amman; Cissna v 1042 

Amoco Production Co. v. Jicarilla Apache Tribe 963 

Amusement & Music Operators Assn. v. Copyright Royalty Tnbunal . 912 

Anaya v. Romero 926 

Anchorage; Hinkle v 1032 

Anderson; Hayton v 1002 

Anderson; Lester v 1045 

Anderson v. Nebraska 1025 

Anderson v. Oregon 924 

Anderson v. United States 912, 920 

Anthony J. Bertucci Construction Co. v. United States 917 

Antonelli v. Illinois 931 

Antoni v. United States 984 

Appalachian Ins. Co. v. United States 1025 

Arboleda v. United States 917 

Arceneaux v. Texaco, Inc 928 

Arechiga v. California 1043 

Arizona; Boag v 933 

Arizona v. Maricopa County Medical Society 979 

Arizona; Robinson v 1044 

Arkansas; Johnson v 981 

Arkansas; Miller v 1035 

Arkansas; Rowe v 1043 

Arkansas-Best Freight System, Inc.; Barrentine v 728 

Arkansas-Best Freight System, Inc. v. Kirkland 980 

Arkansas-Best Freight System, Inc.; Kirkland v 980 

Arkansas-Best Freight System, Inc.; Teamsters v 980 



TABLE OF CASES REPORTED vn 

Page 

Armored Transport, Inc v United States 965 

Armstrong v United States 934 

Arshal v. United States 1050 

Ascher v. Illinois 919 

Ashley v. Kirkland & Ellis 959 

Assistant State Prosecuting Attorney v. Marrero .... 913 

Assistant U. S. Attorney; Diamond v 995 

Associated Radio Service Co ; Page Airways v 1030 

Athanasiou v. New Jersey 922 

Atiyeh v. Capps 975 

Atlantic Richfield Co.; Hahn v 981 

Attorney General ; Howe v 993 

Attorney General ; Outing v 1001 

Attorney General ; Smith v 930 

Attorney General of Me, v. Equifax Services, Inc 916 

Attorney Grievance Comm'n of Md.; Kerpelman v 970 

AuBuchon v. Missouri 915 

Auditor & Controller of San Diego County; Board of Supervisors v . . 918 

August; Delta Air Lines v 346 

Automobile Workers ; Clayton v 906 

Avery v. United States 933 

Aviles v. Superior Court of Cal., Monterey County 930 

Aycock; Louisiana Aircraft, Inc v 917 

B., In re 990 

Bagley v. United States 994 

Bailey ; Longshoremen v 964 

Baker v. Georgia 936 

Baker; Moore v 1043 

Baker v. United States 925, 1040 

Baker; Wolfson v 966 

Baldrige; Federation for American Immigration Reform v 995 

Baldwin v, Louisiana 971 

Baldwin v. United States 1045 

Baloun v. General Motors Corp 960 

Baptiste v. United States 1000 

Barber v. South Carolina 924 

Barbuto, In re 975 

Barham v. United States 1002 

Barker v. United States 919 

Barksdale v. Brewer 927 

Barrentine v Arkansas-Best Freight System, Inc 728 

Barrett; Weber v 1022 

Bartz v. United States 967 

Baskes v. United States 920, 1000 



vni TABLE OF CASES REPORTED 

Page 

Basso v. United States 965 

Batte & Sons of Richmond, Inc ; Bradley v 1037 

Batte & Sons of Richmond, Inc.; Lafayette, Inc, v 1037 

Bauer v United States 1031 

Baxter v. California Unemployment Insurance Appeals Bd 982 

Beach, In re 960 

Beaman; Bradenburg v 984 

Becker's Motor Transportation, Inc v . Department of Treasury, IRS . 916 

Begay v. United States 1040 

Bell;* North Haven Bd. of Ed. v 909 

Belton; New York v 1028 

Bennett; Sonitrol Corp v 901 

Bensalem Township, Mark-Garner Associates, Inc. v 1029 

Benton; Phillips v 926 

Beran v. United States 999 

Berkeley; Citizens Against Rent Control v 908 

Bernard; Gulf Oil Co. v 907, 978 

Bertrand v. United States 1004 

Bertucci Construction Co. v. United States 917 

Beshaw v. Fenton 1039 

Besser v. Graham 962 

Bethlehem Steel Corp., Marriott Corp. v 921 

B, F. v. Colorado, in Interest of T. A. F 1037 

Bible; De Priest v 903 

Binkowski v. Michigan 998 

Bishop Ford Central Catholic High School; Lay Faculty Assn. v. . . . 996 

Blackburn; Johnson v 931 

Blackburn; Richey v 1001 

Blackburn v. Thomas 953 

Blanchette; Pathway Bellows, Inc. v 915 

Bland v. Texas 924, 1035 

Blasingham; Shartel v 921 

Blews v. Florida 1022 

Block; National Pork Producers Council v 912 

Blodgett v. United States 921 

Blue Cross of K. C.; Nat. Gerimedical Hosp. & Gerontology Ctr. v.. 992 

Blue Shield of Va. v. Virginia Academy of Clinical Psychologists 916 

Blum; Martinez v 924 

Blum; Yaretsky v 925 

Boag v. Arizona 933 

Board of Ed. of Hendrick Hudson Central School Dist. v. Rowley. . 907 

Board of Ed. of Lanark Community Unit School Dist.; Elbert v 1031 

Board of Ed. of Lincoln Park; O'Biso v 982 

Board of Ed. of New York City; Caulfield v 1030 



TABLE OF CASES REPORTED ix 

Page 

Board of Ed of Prince George's County; Stemple v 911 

Board of Governors, PRS v. Investment Company Institute 46 

Board of Overseers of Bar; Lee v 1036 

Board of Review, Dept. of Labor & Industry of N. J ; Goldstein v. 968 

Board of Supervisors of San Diego County v Lonergan. . .... 918 

Board of Trustees of Ohio State Univ.; Riggs v 1026 

Bohemian Distributing Co. v. Norman Williams Co 992 

Boise Cascade Corp v. Union Pacific R. Co 995 

Bollotin v. Kaufman, Taylor, Kimmel & Miller 999 

Bombard ; Wright v 935 

Bonarmo Linen Service, Inc. v. National Labor Relations Bd 979 

Boney v. ITT Community Development Corp 1001 

Boni v. United States 925 

Bordenkircher ; Harding v 925 

Boston Old Colony Ins. Co. ; Gutierrez v 922 

Boulder; Community Communications Co. v 1039 

Bourque v, Louisiana 994 

Bowler v. Reagan 923 

Boyd v. Denver 1026 

BP Oil, Inc. v, Donovan 991 

Bradenburg v Beaman 984 

Bradenburg v. Maschner 926 

Bradenburg v. Shillinger 984 

Bradley ; Diamond v 381 

Bradley v. J. F. Batte & Sons of Richmond, Inc 1037 

Bradshaw v. Hall 965 

Brady v. Doe 960 

Brazoria County; Dean v 983 

Brewer; Barksdale v 927 

Brewer; Jenkins v 904 

Briddle v. Illinois 986 

Briggs; Reichstein v 919 

Bristol Spring Mfg. Co. v. National Labor Relations Bd 913 

Bromley Corp. v. Cortese 981 

Bronson ; Pennsylvania Bd. of Probation and Parole v 1050 

Brooklier v. United States 980 

Brooks v. Estelle 929 

Brooks v. United States 926,927 

Broughton v. United States 930 

BrouiUette v. Wood 1044 

Brown v. Brown 966, 998 

Brown v. Hartlage. !029 

Brown v. Illinois 1003 

Brown v. Loggins 932 



xii TABLE OF CASES REPORTED 

Page 

Certain Unindicted Individuals & Corporations v. United States 913 

C~F Air Freight, Inc. v. National Labor Relations Bd 1030 

Chacon v. United States 923 

Chagra v United States 1032 

Chairman, NLRB; Physicians National House Staff Assn. v 917 

Chambly ; Freeman v 936 

Chan v. Immigration and Naturalization Service 921 

Chaney v. Oklahoma 1025 

Chapman ; Rhodes v 906 

Charles D Bonanno Linen Service, Inc. v NLRB 979 

Charlotte-Mecklenburg Bd. of Ed. ; Martin v 1041 

Chavez v. United States 924 

Chavez-Salido; Cabell v 978 

Chemical Construction Corp.; Kremer v 978 

Cheng; GAF Corp. v 903 

Chesapeake & Ohio R. Co. v Meserve 982 

Chesapeake & Ohio R. Co ; Meserve v 982 

Chesapeake & Ohio R Co.; Oltersdorf v 920 

Chestnutt Management Corp., In re 960 

Chicago v. National Organization for Women 965 

Chicago & North Western Transp. Co v. Kalo Brick & Tile Co 311 

Chin v. St. Luke's Hospital Center 902 

Chin v. United States 923 

Chrisman v. United States 1034 

Christ; United States Steel Corp, v 980 

Christ Hospital; Rembold v 903 

Christley; Ehason v 932 

Chrysler Corp.; Burkhalter v 931 

Chrysler Corp. v. Dawson 959 

Chudnoff ; Safir v 914 

Ciaffoni v. Cowden 971 

Cimino v. United States 1005 

Circuit Court of Clark County, Ind. ; Shepphard v 984 

Cissna v. Amman 1042 

Citizens Against Rent Control v. Berkeley 908 

Citizens Fidelity Bank & Trust Co.; M/G Transport Services v 1041 

City. See name of city. 

Ciudadanos Umdos De San Juan; Hidalgo Grand Jury Comm'rs v. . 964 

Civil Service Bd. for City of Columbia; Watts v 983 

Clackamas County; Damascus Community Church v 902 

Clanon v. Gibson 1035 

Clark v. Florida 936 

Clark v. Louisiana 989 

Clark; Nettleton Financial Corp. v 1029 



TABLE OF CASES REPORTED xni 

Page 

Clark ; United States v 993 

Claybrooks v. United States 934 

Clayton v. Automobile Workers 906 

Clayton ; ITT Gilfillan v 906 

Clayton Brokerage Co. of St. Louis, Inc. v. Leist 910 

Clenny v. Harrison 923 

Clerk, Circuit Court of Cook County; Levinson v 1028 

Clerk, Court of Appeals of Kan.; Kinnell v 984, 1050 

Cleveland v. Warden 929 

Cloud v. Byrd 1041 

Cloudy v. Rustamier 933 

Clover Leaf Creamery Co. ; Minnesota v 1027 

Clumm v . Ohio 926 

Coalition to Preserve Houston v. Interim Bd. of Trustees 901 

Coalition to Preserve Houston; Interim Bd. of Trustees v 901 

Coastal Resources Management Council; Schwarz v 981 

Cohen v. Equifax Services, Inc 916 

Cointelpro ; Puchala v 1004 

Cole v. United States 1043 

Coleman v. Sowders 984 

Coletti v. United States 911 

Collier; Printing & Graphic Communications Union v 914 

Collins; Missouri v 1027 

Colorado Dealer Licensing Bd.; Michael Motors, Inc. v 995 

Colorado, in Interest of T. A. F.; B. F. v 1037 

Columbia Broadcasting System, Inc. v. ASCAP 970, 1050 

Commissioner; Buttke v 982 

Commissioner; Cady's Estate v 922 

Commissioner; Newman v 998 

Commissioner v. Portland Cement Co. of Utah 156 

Commissioner; Purvis v 997 

Commissioner; Pusch v 930, 1050 

Commissioner; Redding v 913 

Commissioner; Teichgraeber v 981 

Commissioner; Toner v 916 

Commissioner; True v 916 

Commissioner ; Western Catholic Church v 981 

Commissioner, N. Y. Dept. of Social Services; Martinez v 924 

Commissioner, N. Y. Dept. of Social Services; Yaretsky v 925 

Commissioner of Insurance of Ala.; Moody v 1026 

Commissioner of Internal Revenue. See Commissioner. 

Commissioner of Patents and Trademarks v. Bradley 381 

Commissioner of Patents and Trademarks v. Diehr 175 

Commissioner of Patents and Trademarks ; Factor v 



XIV 



TABLE OF CASES REPORTED 



Page 

Commissioner of Patents and Trademarks v. Hirschfeld 994 

Commissioner of Patents and Trademarks v. Sherwood 994 

Commissioner of Revenue of Alaska; Zobel v 908 

Commissioner of Revenue of N. M.; Mescalero Apache Tribe v 959 

Commissioner, Tenn. Dept. of Employment Security; De Priest v. . 903 

Commissioner, Ulster County Social Services Dept.; Santosky v 993 

Common Cause v. Schmitt 90S 

Commonwealth. See name of Commonwealth. 

Commonwealth Edison Co. v. Montana 991 

Community Communications Co. v. Boulder 1039 

Compton v. Texas 997 

Concerned Jewish Youth v. McGuire 913 

Coney v. Louisiana 933 

Connecticut; Godek v 1031 

Connecticut v. Mohegan Tribe 1028 

Connecticut; Zdanis v 1003 

Connor v. Flynn 971 

Conroy, In re 1038 

Consolidated Freightways Corp. of Delaware v. Kassel 1039 

Consolidated Freight ways Corp. of Delaware; Kassel v 662 

Consumers Union of United States, Inc. v. Siebert 901 

Continental Oil Co. v. Occupational Safety & Health Rev. Common. . 965 

Cooper v. Cooper 904 

Cooper v. Illinois 1000 

Cooper v. Mississippi 926 

Copyright Royalty Tribunal ; Amusement & Music Operators Assn. v . 912 

Corbin v. Federal Reserve Bank of NI Y 970 

Corey v. United States 925 

Corrections Commissioner. See name of commissioner. 

Cortese; Bromley Corp. v 981 

Cortese; Roberts Airways v 981 

Cory, In re 905 

Coshocton County Children's Services Bd.; Howell v 990 

Costanzo; Gurmankin v 923 

Costle; Mountain States Legal Foundation v 1050 

Costle; Pacific Legal Foundation v 914 

Costle; Union Carbide Agricultural Products Co. v 996 

Cotton v. United States 1032 

Couch v. United States IQOO 

Counselman; Missouri v , * . / t 990 

Countryman v. Zipp 929 

County. See name of county. 

Court of Appeals of N. Y.; Fleming v... 902 

Court of Criminal Appeals of Tex. ; Potts v 969 



TABLE OF CASES REPORTED xv 

Page 

Coutu; Universities Research Assn. v 754 

Cowden ; CiafToni v ... 971 

Craig v Los Angeles County 919 

Cramer v. Wisconsin 924 

Cravens ; McCown v 964 

Crockett; Mayor of Baltimore v 967 

Crumpacker, In re 904 

C. S., In re 929 

Culbreth v United States 968 

Cummings v Dobbs 982 

Curtin v. California 917 

Curtiss Breeding Service ; Two Rivers Co. v 920 

Cuyler ; Oliver v 928 

Dallas County ; Rheuark v 931 

Damascus Community Church v. Clackamas County 902 

D'Andrea ; Adams v 919 

D'Angelo v. United States 969, 986 

Daniel Construction Co v. National Labor Relations Bd 918 

D'Antignac v. United States 967 

Darcy ; Dukes v 1003 

DASCO, Inc. v. American City Bank & Trust Co 914 

Daugherty ; Washington v 958 

Davis, In re 993 

Davis ; Calgon Corp. v 971 

Davis ; Gilcnst v 1044 

Davis v. New York 1043 

Davis v. Oregon 1032 

Davis; Rizzo v 919 

Davis v. Texas 968 

Davis v. Warden 1002 

Dawson ; Chrysler Corp. v 959 

Dean v. Brazoria County 983 

Deems v. Illinois 925 

Deener v. Ohio 1044 

DeGideo v. Altemose Construction Co 971 

DeJarnette v. United States 1004 

Delaware; Able v 989 

Delaware; Doe v 382 

Delaware v. Evans 991 

Delaware v. Hunter 991 

DeLoach v. United States 933 

Delta Air Lines v. August 346 

DeLucca v. United States 983 

Demanett v. United States . 910 



TABLE OF CASES REPORTED 

Page 

Democratic Party of U. S v. Wisconsin ex rel. La Follette 107 

Democratic Sen. Campaign Comm.; Federal Election Comm'n v. . . . 964 

Democratic Sen. Campaign Comm ; Nat. Republican Sen. Comm. v. 964 

Denver; Boyd v 1026 

Department of Energy; Shell Oil Co. v 1024 

Department of Labor, McCorstin v 999 

Department of Labor; Odom Construction Co. v 966 

Department of Treasury, IRS; Becker's Motor Transportation v. . . 916 

DePaul v. Pennsylvania 1003 

De Priest v Bible 903 

Deputy Attorney General of N. Y. ; McGinley v 918 

Detroit v Detroit Police Officers Assn 903 

Detroit Police Officers Assn.; Detroit v 903 

De Vincent v. Putnam 1005 

DeVincent v. United States 984 

Dewey; Donovan v 1029 

Diamond v. Bradley 381 

Diamond v Diehr 175 

Diamond v Hirschfeld 994 

Diamond v. Sherwood 994 

Diamond v. Walter 995 

Diehr; Diamond v 175 

DiGilio v. United States 936 

Ding Chan v. Immigration and Naturalization Service 921 

Diocese of Newark ; Burns v 1027 

Diorio v. Kreisler-Borg Construction Co 1031 

Director, Dept of Alcoholic Bev. Control v Norman Williams Co ... 992 

Director, 111. Dept. of Agriculture; Carroll Feed Service, Inc. v 903 

Director, Mo, Dept. of Social Services v. Chambly 936 

Director, Office of Personnel Management ; Lum v 959 

Director, OWCP; U S. Industries/Federal Sheet Metal, Inc. v 979 

Director of Health of Ohio ; Green v 966 

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

Director of Selective Service v. Goldberg 906, 963 

Director of Transportation v. Consolidated Freightways Corp 662 

District Court. See U S. District Court. 

District Director of Internal Revenue; Rizzo v 919 

District of Columbia; Marshall v 1003 

District of Columbia Bd. of Appeals and Review; Holmes v 921 

Dizak v. United States 1032 

Doak v. Maryland 935 

Dobbs; Cummings v 982 

Dock v. Morris 934 



TABLE OF CASES REPORTED jcra 

Page 

Dodson ; Polk County v 963, 992 

Doc ; Brady v 960 

Doc ?. Delaware . . . . 382 

Doc ?>. West. .. . 971 

Donnelly, In re 904 

Donohue ? New York . 927 

Donovan; BP Oil, Tnr v 991 

Donovan ; Brown Insulating Systems, Inc. v 912 

Donovan v Dowry 1029 

Donovan; Ellis Fisrhel State Cancer Hospital v 1040 

Donovan ; Glassboro Service Assn v 1040 

Donovan ; Orange County v 966 

Donovan ; Railway Carmen ?> 980 

Dorta v Forsht 991 

Dorty, In re 978 

Dorty ?' Hayes 1034 

Draper ; McDonald ?' 983 

Drooiak v. Supreme Court of N. H 989 

Drummond v Stahl 967 

Drummoncl ?. United States 1045 

Dry Creek Lodge, Ine, ; Shoshono Tribe v 960 

Dufur v United States 925 

Dugas ?'. Kelly 1030 

Dukes v. Dnrcy 1003 

Dunaway v. Schweiker 934 

Dumvant v. ( Georgia 998 

Dunk v. Manufacturers Light & Heat Co 971 

Dyer ; Washington v 970 

Kades ?. United States 1001 

Eastern Air Lines ?>. Burwoll 965 

Eastern Air Lines ; Burwell v 965 

East Troy; Soo Lino It Co. v 922 

Kat on v. Supreme Court of Ark. Comm. on Professional Conduct. . . 966 

Eaton Corp. v. Fox 935 

Kby; Winston v 1031 

Kddings v. Oklahoma 1040 

Edgar v. MITE Corp 978 

Kdraon v. United States 969 

Edwards ?;. Jago 927 

EfroH ; Talari Corp. v 1030 

Kfcan 2J United Rtatos 983 

Egeler ; Ixiwandowski v 928 

Ehrman r. Philacl<lphia 997 

Elbert v. Board of Ed. of Lanark Community Unit School Dist 1031 



xvni TABLE OF CASES REPORTED 

Page 

Elcan v. United States 1050 

Eliason v. Christley 932 

Elizabeth Gamble Deaconess Home Assn.; Rembold v 903 

Ellis Fischel State Cancer Hospital v Donovan. . . ... 1040 

Emch v United States 966 

Emory v. United States ... 917 

Energy Action Educational Foundation; Watt v 1040 

Engle ; Maynard v 985 

Engle v. Sims 936 

Engle; Vitoratos v 1044 

Enstam v. United States 912 

Entertainment Concepts, Inc.; Maciejewski v 919 

Environmental Protection Agency v National Sea Clammers Assn . 977 

Environmental Protection Agency; Selco Supply Co v 1030 

Equal Employment Opp Comm'n; First Nat Bank of Jackson v. . . 917 

Equal Employment Opp Comm'n; Peoples Bank of Indianola v 996 

Equifax Services, Inc.; Cohen v 916 

Erickson v. United States 929 

Ericson Telecommunications, Inc.; Teltronics Services, Inc v 978 

Establishment of Religion in Fed. Bur. of Prisons; Thenault v. . 929, 1035 
Estate. See name of estate. 

Estelle; Brooks v 929 

Estelle; Johnson v 984 

Estelle v. Jurek 1014 

Estelle; Jurek v 1001 

Estelle; Knight v 927 

Estelle; Preacher v 930 

Estelle; Rhodes v 1033 

Euge v. United States 960 

Evangelical Retirement Homes of Greater St. Louis; Williams v 1002 

Evans; Delaware v 991 

F. v. Colorado, in Interest of T. A. F 1037 

Fact Concerts, Inc.; Newport v 906, 962, 992, 1028 

Factor v. Commissioner of Patents and Trademarks 996 

Fair Assessment in Real Estate Assn. v. McNary 1039 

Faison v. U. S. District Court 922 

Falcon; General Telephone Co. of Southwest v 1036 

Fallin v. Warden 926 

Farrell Lines, Inc.; Jensen v 916 

Faulkner Radio, Inc. v. Federal Communications Comm'n 1041 

Fear v. Virginia 1040 

Federal Communications Comm'n; Faulkner Radio, Inc. v 1041 

Federal Communications Comm'n v. WNCN Listeners Guild 582 

Federal Election Comm'n v. Americans for Change 908 



TABLE OF CASES REPORTED xix 

Page 

Federal Election Comm'n v. Democratic Sen. Campaign Comm. . . . 964 

Federal Energy Regulatory Common; Tema Oil Co. v 915 

Federal Energy Regulatory Comm'n, United Gas Pipe Line Co. v. . 911 

Federal Reserve Bank of N. Y ; Corbin v 970 

Federal Trade Comm'n v Official Airline Guides, Inc 917 

Federation for American Immigration R,eform v. Baldnge 995 

Feenstra ; Kirchberg v 455 

Fehciano v Secretary of Health and Human Services 1005 

Fen Chin v. St Luke's Hospital Center 902 

Fenton ; Boshaw v 1039 

Ferreboeuf v United States 934 

Finger v Joint Bar Assn. Grievance Comm. for 2d & llth Dists. . . 922 

Fmlayson v. New York 931 

Fmley ; Levmaon v 1028 

Firestone v. Florida 998 

Fimstono Tiro & Rubber Co v. Risjord 1028 

First National Bank of Jackson v EEOC 917 

FirM Nat Bank of Omaha v Marquette Nat Bank of Minneapolis. 1042 

First National Maintenance Corp. v. NLRB 907, 978 

Fisher, In re 908 

Fitzpatriek v Kirkland 980 

Five Points Shopping Center ; Wood v 995 

Flanigan ; Burlington Northern Inc. v 921 

Fleishcr Co. v. LOH Angeles County 1027 

Fleming v. Court of Appeals of N. Y 902 

Flenner v. Virginia 930 

Flight Attendants v. Trans World Airlines 979 

Florida; Agrella v 910 

Florida; Alestra v 924 

Florida; Alfaro v 923 

Florida; Blows v 1022 

Florida; Clark v 936 

Florida; Firestone v 998 

Florida; King v 989 

Florida; Magill v 927 

Florida v. Malone 904, 1034 

Florida ; Shapiro v 982 

Florida; Wright v 923 

Florida Dept. of Health v Florida Nursing Home Assn 147 

Florida Nursing Home Assn ; Florida Dept. of Health v 147 

Florida Parole Comm'n ; Maggard v 960 

Florida Publishing Co.; Ihle v 1031 

Florsheim, In re 977 

Flynn ; Connor v 971 



xx TABLE OF CASES REPORTED 

Page 

Flynt v. Ohio 963 

Fokakis ; Waste Management of Wisconsin, Inc v 960 

Fontanez v. United States 935 

Ford v. Griffin 923 

Ford Motor Co. , Smith v 918 

Fonnan v Smith 1001 

Forresster; Moody v.. 1026 

Forsht; Castillo v 922 

Forsht; Dorta v 991 

Fowler v. Idaho 916 

Fox; Eaton Corp. v 935 

Frame v Oregon 96S 

Francis v Government of Virgin Islands 1005 

Frank; Stein v 990 

Franks v Louisiana 983 

Franzen; Thmgvold v 1034 

Franzen; Timraons v 933 

Freeman v. Chambly 936 

Freeman; Ray v 997 

Freeman v. United States 910 

French v. New York 1042 

Friedman v. Jewish Family Services 1003 

Friendship Village; Williams v 1002 

Fritz; U. S. Railroad Retirement Bd. v 960 

Fry, In re 1038 

Fury Imports, Inc. ; Shakespeare Co. v 921 

Fusco ; Solomon v 926 

Fusco; Vic's Garage v 926 

Gabbard v. United States 1004 

GAF Corp. v. Cheng 903 

Gall v. Kentucky 989 

Gallion v Massey Ferguson Co 969 

Galvan v. Illinois 1001 

Gambara, In re 960 

Gan v. United States 975 

Garcia; Siffrin Residential Assn. for Developmentally Disabled v 911 

Garman t>. Northern Trust Co 910 

Garner v. United States 923 

Garrett v. United States 918 

Garrison v. Illinois 961 

Garrison; Shuler v 928 

Gary W. ; Louisiana v 994 

General Motors Corp.; Baloun v 960 

General Motors Corp.; Buczynski v 906 



TABLE OF CASES REPORTED xxi 

Page 

General Portland Cement Co. v. United States 983 

General Telephone Co of Southwest v Falcon 1036 

George 7' Kay . 1029 

George v United States 933 

Georgia ; Baker v 936 

Georgia ; Dunivant v 998 

Georgia , Giddens v 1026 

Georgia ; Green v 936 

Georgia ; Hamilton v 989 

Georgia ; Hollingsworth v 981 

Georgia ; Simpson v 972 

Georgia ; Smith v 922 

Georgia ; Wilson v 971 

Georgia ; Wood v 261 

Georgia Power Co. v 138 30 Acres of Land 936 

Georgia Power Co. v United States 981 

Gerald v. United States 920 

Gcrdes v United States 981 

Gibbons; Railway Labor Executives' Assn v 908 

Gibbs v. Welsh 981 

Gibson ; Clanon v 1035 

Giddens v. Georgia 1026 

Gilcrist v Davis 1044 

Gilmer v Truck Drivers 1030 

Glassboro Service Assn. v. Donovan 1040 

Glass Master Corp. , Weidman Metal Masters Co. v 982 

Godek ?. Connecticut 1031 

Goldberg; Rostker v 906, 963 

Goldstein ?'. Board of Review, Dept. of Labor & Industry of N. J. . . 968 

Gomez v. United States 994 

Gonzalez v. United States 986 

Goooh v. Mississippi 923 

Goode v. Ohio 903 

Goodcn v. Texas 960 

Goolsby v. Virginia 1001 

Gornick v. Illinois 961 

Government of Virgin Islands; Francis v 1005 

Governor of Colo. v. Ramos 1041 

Governor of Colo ; Ramos v 1041 

Governor of FJa. ; Besser v 962 

Governor of Fla. ; Weaver v 24 

Governor of Ohio v. Chapman 906 

Governor of Ore. v. Capps 975 

Governor of Utah; H. L. v 398 



TABLE OF CASES REPORTED 



Graham; Besser v .............................. 962 

Graham v Morris ........................... 10 ** ;J 

Graham v. United States ...... . . . - ---- 1034 

Graham; Weaver v ................................ 24 

Graphic Arts International Union; Standard Register Co. v . . 907 

Grass!?; United States ............ .......... 956 

Graves v. Williams ................................. 030 

Gray v. Illinois ..................................... 1032 

Gray v. United States ................................ 927 

Grcich v. Pittsburgh National Bank ..................... 997 

Green, In re ............................................. 90S 

Green v. Ackerman ................................... 900 

Green; Cassady v .................... ............... 910 

Green v. Georgia ...................................... 930 

Green v. Schweiker ........................................ 1032 

Greenberg v San Juan Hotel Corp ..................... 1043 

Greenberg's Estate; Pmcus v ............................... 961 

Greer ; Missouri v ............................................ 1027 

Gregg v. New York ........................................ 935 

Griee v. Illinois ............................................... 1003 

Griffin, In re ............................................... 1029 

Griffin; Pord v ............................................. 923 

Grinan v. Trespalacios ....................................... 961 

Grochulski v. Henderson ....................................... 927 

Grooms v. Slabaugh .......................................... 3020 

Gross, In re .................................................. 970 

Grossman; Portley v .......................................... 962 

Groton; Johl v ............................................... 971 

Guardiola v. United States ........... , ......................... 994 

Guerra v. United States ....................................... 934 

Guice v. Illinois ............................................... 968 

Gulf Offshore Co. v. Mobil Oil Corp ............................ 907 

Gulf Oil Co. v. Bernard ..................................... 907, 978 

Gunston v. United States ...................................... 1034 

Gunter ; Bumpus v ............................................ 1003 

Gunther; Washington County v .............................. 907, 963 

Gurmankin v. Costanzo ........................................ 923 

Gutierrez v. Boston Old Colony Ins. Co .......................... 922 

H. A. Artists & Associates, Inc. v. Actors' Equity Assn ............ 963 

Hackett v. United States ...................................... 1001 

Hague; Allstate Ins. Co. v ..................................... 971 

Hahn v. Atlantic Richfield Co .................................. 981 

Haid v. Walker ............................................... 927 

Hale v. United States ............ . ............................ 932 



TABLE OF CASES REPORTED xxm 



Hall , Bradshaw ? ....................... 965 

Hall r Towa ................................. 927 

Hall ?. United Stairs* . , ...................... 923 

Hamilton ? Georgia ................................... 989 

Hammond v Illinois ................................... 966 

Hanoi ?. Illinois ..................................... 927 

ITanigan v. United States .............................. 982 

ITanna ; Toner v ........................................ 919 

Hannah ; Ma thews v ....................................... 967 

Hanson ; Schweiker ?> ................................ 785 

Harding ?' Bordenkireher ............................... 925 

Hargrove ? Ohio ................................. 968 

Harris ? Peterson ............................. 932 

Harris v Spain ................................ 985 

Harris ?>. Virginia ............................................ 915 

Harris; Wofford v ........................................... 928 

Harrison ; Clenny v ..................................... 923 

Elartlage , Brown ? ..................................... 1029 

Harwell Propeller, Inc. ?>. Reyno ............................... 909 

Hatcher v. United States ..................................... 921 

Haugen ?'. Taylor ........................................... 1041 

Havens v. United States ..................................... 995 

Ha Wang; Immigration and Naturalization Rerviec v ............ 139 

Hawkins ; Missouri ? .......................................... 1027 

Hayes; Dorty v ............................................ 1034 

Haymes v. United States ...................................... 1005 

ITaynes v. California .......................................... 969 

Hays v. United States ........................................ 965 

Hay ton v. Anderson .......................................... 1002 

HCSC-Laundry v. United States ............................... 1 

Hedman v. United State* ...................................... 965 

lledstrom Co, v. National Labor Relations Bd ................... 996 

IMnold Commodities, Inc. v. Leist ............................. 910 

Helms; Jones v ............................................... 977 

Henderson ; Byers v ........................................... 968 

Henderson v. California ....................................... 928 

Henderson ; Groohulski v ...................................... 927 

Henderson v. Sehwctikcnr ....................................... 985 

Honclricks County Klertrie Membership Corp. v. NLRB ........... 964 

Hendrieks County Kh'etric Membership Corp.; NLRB v ........... 964 

Hensler v. United States ...................................... 980 

Hennon ; Wyrick v ............................................ 958 

IleKH; Sarycki v ............................................. 985 

Hickey; Welch v ............................................. 969 



XXIV TABLE OF CASES REPORTED 

Hicks; United States ?' .. . .... .. . 

Hidalgo Count v Grand Jur\ Comm'r- /' Ciu<l;ulan<K rnnio- , 
Hidden Valley Civic Club; Malik ?< . . . .. .... 

Hill ?>. American Airlines. ... . 0V! 

Hill; Stein v 1~~ 

Hill v. Virginia Oft I 

Hinkle v Anchorago ... . , IO.TJ 

Hirschfeld; Diamond ?' O'.M 

H. L. v Matheson '*OS 

Hochstein v. Nebraska .. W~*~ 

Hockenbury v Sowders . . . O.'W 

Hookers United States . HHl'J 

Holland v. United States . . HKI4 

Hollingsworth v. Georgia - OM 

Holmes v. District of Columbia Bd of Appeals and KIVHW . O'JI 

Holmes t;. Orr . . Ott'J 

Hobey v. Watkins . OS* 

Hoznan & Cnmen, Inc ?'. Schweiker O7. r 

Hopkins r. Rector, Churchwardens & Vestrymen 015 

Hopkinson v. United States. !WUl 

Hopland Nokornis Assn. v. Watt 1NO 

Hopper; Hughes v 033 

Hormck v. Noyes 10 M 

Horsley; Orpiano ^ lsfi 

Horton v. United States IU'W 

Hospital Central Services Assn. ? United States , CM I 

Hospital Workers v. Paaatiempo Development Corp UIK 

Housley v. Mattox .27 

Houston v. Lane + HHW 

Howe v. Smith <JW 

Howell v. Coshocton County Children's Services Bd 1KH) 

Howe Richardson Scale Co.; Irving Equipment & C'omtfr. Co. r. , . UVJ 

Howe Richardson Scale Co. ; Spencer v ilKU 

Hudson v. Louisiana 40 

Hughes v. Hopper |i33 

Hullum v. United States , !H5 

Hunter; Delaware v , <MJ 1 

Hunter v. New York Dept. of Civil Service WM 

Hunt-Wesson Foods, Inc.; Ragu Foods, Inc. v 921 

Hynes; McGinley v 018 

Iberia Air Lines of Spain; Machinists & Aerospace Workers v 

Idaho; Fowler v 

Ihle v. Florida Publishing Co 

Illinois; Antonelli v 931 



TABLE OF CASES REPORTED xxv 

Page 

Illinois ; Aseher v 919 

Illinois; Briddle v. . . . 986 

Illinois; Brown v 1003 

Illinois ; Bryant v 1033 

Illinois ; Cooper v 1000 

Illinois ; Deems v 925 

Illinois ; Galvan v 1001 

Illinois ; Garrison v 961 

Illinois ; Gornick v 961 

Illinois ; Gray v 1032 

Illinois ; Grice v 1003 

Illinois ; Guice v 968 

Illinois ; Hammond v 966 

Illinois ; Hanei v 927 

Illinois ; Logan v 1033 

Illinois ; Matschke v 917 

Illinois ; Outlaw v 983 

Illinois ; Parsons v 1044 

Illinois v. Savory 989 

Illinois ; Scarpolli v 915 

Illinois ; Wolski v 915 

Illinois Central Gulf R. Co. v Ingle 916 

Tllsley v U R. Parole and Probation Dcpt 1032 

Immigration and Naturalization Service v Jong Ha Wang 139 

Immigration and Naturalization Service; Wing Ding Chan v 921 

Indiana; McMillian v 1003 

Indiana ; Williams v 971 

Industrial Valley Bank & Trust Co.; Wexler v 1034 

Tnoxco Oil Co. v. Walters 999 

Inglo ; Illinois Central Gulf R. Co. v 916 

Ingram v. United States 986 

In re. See name of party. 

Insilco Broadcasting Corp. v. WNCN Listeners Guild 582 

Institute of Gas Technology ; Kcphart v 959 

Interim Bd. of Trustees v . Coalition to Preserve Houston 901 

Interim Bd. of Trustees; Coalition to Preserve Houston v 901 

International. For labor union, see name of trade. 

Investment Company Institute; Board of Governors, FRS v 46 

Iowa; Hall v 927 

Irving Equipment & Constr. Co. v. Howe Richardson Scale Co 982 

Israel ; Sponoer v 1032 

ITT Community Development Corp.; Boney v 1001 

ITT Gilffllan v. Clayton 906 

Ivory v. United States 932 



TABLE OF CASES REPORTED 

Page 

Jacks v United States 934 

Jackson, In re 960 

Jackson v California 1035 

Jackson; Petty v 1043 

Jackson v. United States 918 

Jacksonville Bulk Terminals, Inc. v Longshoremen 1029 

Jago ,* Edwards v 927 

Jamil v. Southridge Cooperative Section 4, Inc 919, 1050 

Jastrzebski v. United States 914 

Jefferson County v. United States 901 

Jenkins v. Brewer 904 

Jenkins v. South Carolina 1030 

Jenkins v. United States 970 

Jensen v. Farrell Lines, Inc 916 

Jewish Family Services; Friedman v 1003 

Jewish Hospital Assn of Louisville v Stewart Mech. Enterprises. . 966 

J F Batte & Sons of Richmond, Inc.; Bradley v 1037 

J. F. Batte & Sons of Richmond, Inc.; Lafayette, Inc. v 1037 

Jicarilla Apache Tribe; Amoco Production Co. v 963 

Jicarilla Apache Tribe ; Merrion v 963 

Jicarilla Apache Tribe ; Merrion & Bayless v 963 

Johl v. Groton 971 

John L. Schulz Plumbing & Heating v Pratte 999 

John Nuveen & Co. v. Sanders 1005 

Johns v. King 1033 

Johnson v. Arkansas 981 

Johnson v. Blackburn 931 

Johnson v. Estelle 984 

Johnson; Kaufman Investment Corp. v 914 

Johnson v. Oklahoma 1026 

Johnson; Orpiano v 929 

Johnson v. Overberg 1004 

Johnson v. Texas 929 

Johnson v. Trueblood 999 

Johnson v. United States 991 

Joint Bar Assn. Grievance Committee, 2d & llth Dists.; Finger v. . . 922 

Joint Bar Assn Grievance Committee, 10th Jud. Dist. v. Koffler. . . 1026 

Joint Meeting of Essex & Union Counties v. Nat. Sea Clammers Assn . 977 

Jones v. Helms 977 

Jones; Lane v 928 

Jones v. United States 916, 967 

Jones v. Wisconsin 1033 

Jong Ha Wang; Immigration and Naturalization Service v 139 

Jurek v. Estelle inm 



TABLE OF CASES REPORTED xxvn 

Page 

Jurek; Estelle v 1014 

Justice v . United States 923 

Justices of Supreme Court of Idaho ; Burt v 997 

J. W. B., In re 990 

Kadet v. Smith 931 

Kalo Brick & Tile Co.; Chicago & North Western Transp. Co. v 311 

Kanasola v. Smith 930 

Kansas; Burton v 1002 

Karlin v. Orr 996 

Karn v . Magnavox Co 918 

Kassel v. Consolidated Freightways Corp. of Delaware 662 

Kassel; Consolidated Freightways Corp. of Delaware v 1039 

Kaufman Investment Corp. v. Johnson 914 

Kaufman, Taylor, Kimmel & Miller; Bollotin v 999 

Kavaja v. United States 1000 

Kay; George v 1029 

Keezer v. Minnesota 930, 1035 

Kelley v. United States 1005 

Kelly; Dugas v 1030 

Kenney v. Louisiana 925 

Kentucky; Carter v 288 

Kentucky; Gall v 989 

Kentucky v. Newsome 958 

Kephart v. Institute of Gas Technology 959 

Kerpelman, In re 975 

Kerpelman v. Attorney Grievance Comm'n of Md 970 

Kett v. United States 1000 

Kimbrough ; Williamson v 1042 

King v. Florida 989 

King; Johns v 1033 

Kinnell v. Carlin 984, 1050 

Kinnell v. Clerk, Court of Appeals of Kan 984, 1050 

Kinnell v. Willcott 984, 1050 

Kirchberg v. Feenstra 455 

Kirkland v. Arkansas-Best Freight System, Inc 980 

Kirklond; Arkansas-Best Freight System, Inc. v 980 

Kirkland; Fitzpatrick v 980 

Kirkland & Ellis; Ashley v 959 

Kirkland & Ellis; Marschak v 959 

Kissinger v. Reporters Committee for Freedom of Press 992 

Kittrell; Short v 913 

Klauber, In re 976 

Knight v. Estelle 927 

Koffler; Joint Bar Assn. Grievance Committee, 10th Jud. Dist. v 1026 



xxvni TABLE OF CASES REPORTED 



Kohls v. United Parcel Service, Inc ................. . 931 

Kramer; Santosky v .................................. 993 

Kreisler-Borg Construction Co.; Diorio v ................ 1031 

Kremer v. Chemical Construction Corp ............... 978 

Kumar, In re ....................................... 1037 

Kurzius, Inc v. Upper Brookville ......................... 1042 

L. v, Matheson ..................................... 398 

Labor Union See name of trade. 

Lafayette, Inc. v J. F. Batte & Sons of Richmond, Inc .......... 1037 

La Follette; Democratic Party of U. S. v ...................... 107 

Lahr ; Owchariw v ....................................... 985 

Lake v. Alabama ......................................... 1004 

Lambert; Red v ........................................... 1040 

Lamm v Ramos ........................................ 1041 

Lamm; Ramos v ............................................. 1041 

Landis v United States ..................................... 918 

Landry v. Louisiana ..................................... 968 

Lane; Houston v ........................................... 1003 

Lane v. Jones ............................................... 928 

Langworthy v. Maryland ...................................... 960 

Lanphear ; California v ...................................... 904 

Larose v. Worcester Housing Authority ......................... 925 

LaSalle National Bank; Rosewell v ............................ 503 

Laurents v. United States ...................................... 1001 

Law Offices of Alioto ; Lee v ................................. 967 

Lawson v. Original Appalachian Artworks, Inc .................. 929 

Lay Faculty Assn. v Bishop Ford Central Catholic High School ---- 996 

Leachman v . Oklahoma ....................................... 1033 

LeClair v. Saunders ........................................... 959 

Lee v. Board of Overseers of Bar ............................... 1036 

Lee v. Law Offices of Alioto .................................... 967 

Lee v . United States .......................................... 935 

Lee; United States v .......................................... 993 

Leeke; Pruitt v ............................................... 928 

Lehman v. Nakshian ........................................ 905, 991 

Lehman; Saunders v .......................................... 980 

Leighton, In re ............................................... 976 

Leist; Clayton Brokerage Co. of St. Louis, Inc. v ................ 910 

Leist; Heinold Commodities, Inc. v ............................ 910 

Leist; New York Merchantile Exchange v ....................... 910 

Lentz v. United States ........................................ 995 

Lester v. Anderson ........................................... 1045 

Levinson v. Finley ............................................ 1028 

Lewandowski v. Egeler ........................................ 928 



TABLE OF CASES REPORTED xxix 

Page 

Lewis ; Burba nk Anti-Noise Group v 965 

Lewis v United States 924, 935 

Lieutenant Governor of Haw , Johns v 1033 

Light v Louisiana 925 

Likakur, In re 90S 

Limnger v Massachusetts 986 

Lisner, In re 1038 

Littles?; United States 969 

Litton Systems, Inc. v. Lundy 913 

Livingston v United States 914 

L. M Ericson Telecommunications, Inc.; Teltronics Services, Inc. v. 978 
Local. For labor union, see name of trade, 

Lockett v Ohio 931 

Logan v. Illinois 1033 

Logan v. Zimmerman Brush Co 909 

Loggins; Brown v 932 

Lohmann, In re 960 

Lomas & Nettleton Financial Corp. v. Clark 1029 

Lomax v. Alabama 1002 

London v United States 919 

Lonergan; Board of Supervisors of San Diego County v 918 

Lone Star Steel Co. v. National Labor Relations Bd 911 

Lone Star Steel Co.; National Labor Relations Bd v 911 

Long; Bureau of Economic Analysis v 975, 1301 

Longshoremen v. Bailey 964 

Longshoremen; Jacksonville Bulk Terminals, Inc. v 1029 

Los Angeles County ; Craig v 919 

Los Angeles County; Walter Fleisher Co. v 1027 

Loucas v. United States 1030 

Louisiana ; Baldwin v 971 

Louisiana; Bourquo v 994 

Louisiana; Clark v 989 

Louisiana; Coney v 933 

Louisiana; Franks v 983 

Louisiana v. Gary W 994 

Louisiana ; Hudson v 40 

Louisiana; Kenney v 925 

Louisiana; Landry v 968 

Louisiana; Light v 925 

Louisiana ; Packard v 928 

Louisiana ; Statum v 969 

Louisiana ; Williams v 971 

Louisiana Aircraft, Inc. v. Aycock 917 

Louisville & Nashville R. Co : Public Service Comm'n of Tenn. v. . . 959 



xxx TABLE OF CASES REPORTED 

Pa BC 

Lowrev v Morris 990 

Lum v Campbell 959 

Lundy; Litton Systems, Inc. v 913 

Lundy ; Rose v 910 

Lung v. O'Cheskey 961 

Luttrell v. United States 935 

Lyall; Whitted v 1042 

M 2;. California 464 

M. v Superior Court of Sonoma County 464 

Mabry v. Cenla Finance, Inc 1002 

MacArthur v Philippine Air Lines 985 

Machine Tool & Gear, Inc v. National Labor Relations Bd 1040 

Machinists & Aerospace Workers v. Iberia Air Lines of Spain 999 

Maciejewski v. Entertainment Concepts, Inc 919 

Macon v. Mitchell 1002 

Maddox v. United States 931 

Maggard v. Florida Parole Comm'n 960 

Magill v. Florida 927 

Magnavox Co ; Karn v 918 

Malik v. Hidden Valley Civic Club 980 

Malleable Iron Range Co.; National Labor Relations Bd. v 964 

Malone; Florida v 904, 1034 

Manka v. Martin 913 

Mann v. United States 994 

Mansfield v. State Bar of California 997 

Manufacturers Light & Heat Co. ; Dunk v 971 

Mapson, In re 908 

Maricopa County Medical Society; Arizona v 979 

Mark-Garner Associates, Inc. v. Bensalem Township 1029 

Marks; Washington v 969 

Marquette Nat. Bank of Minneapolis; First Nat. Bank of Omaha v. 1042 

Marrero ; Rashkind v 913 

Marriott Corp. v. Bethlehem Steel Corp 921 

Marschak v. Kirkland & Ellis 959 

Marshall v. District of Columbia 1003 

Martier v. United States 914 

Martin v. Charlotte-Mecklenburg Bd. of Ed 1041 

Martin; Manka v 913 

Martin; Missouri v 1027 

Martin v. North Carolina 1004 

Martin; Watkins v 929 

Martinez v. Blum 924 

Martinez v. United States 922, 994 

Maryland; Doak v 985 



TABLE OF CASES REPORTED xxxi 

Page 

Maryland; Langworthy v 960 

Maryland ; Mayne v 910 

Maryland ; Whack v 990 

Maschner ; Bradenburg v 926 

Massachusetts ; Lininger v 986 

Massachusetts ; Phillips v 929 

Massey v. United States 969 

Massey Ferguson Co ; Gallion v 969 

Matheson; H. L. v 398 

Mathews v. Hannah 967 

Mathews v. Oregon 1040 

Matschke v. Illinois 917 

Matsis v. Matsis 922 

Matthews v. United States 962 

Mattox; Housley v 927 

Maynard v. Engle 985 

Mayne v. Maryland 910 

Mayor of Baltimore v Crockett 967 

Mazella v. United States 931 

Mazza v. United States 967 

McCall v Watt 996, 997 

McClellan, In re 1038 

McCorstin v. Department of Labor 999 

McCown v. Cravens 964 

McCoy v. United States 935 

McDonald v. Draper 983 

McDonald v. Metropolitan Airport Authority 1002 

McDonald v. Metropolitan Govt. of Nashville & Davidson County. . 933 

McDonald v. Tennessee 983 

McDowell v. North Carolina 1025 

McFadden v. United States 1043 

McFarland v . United States 1029 

McGee v. Michigan 985 

McGee; Missouri v 990 

McGinley v. Hynes 918 

McGovern v. United States 911 

McGuire; Concerned Jewish Youth v 913 

Mcllroy v. Texas 998 

McKee v. Alaska 967 

McKeldin v. Rose 969 

McKinnie v. Wisconsin 1033 

McMillian v. Indiana 1003 

McNary; Fair Assessment in Real Estate Assn. v 1039 

McNeil v. North Carolina 915 



xxxii TABLE OF CASES REPORTED 



Me Williams v United States .................... 1004 

Mecca Ltd.; Patricelli v ............................... 971 

Merrion v Jicarilla Apache Tribe ...... ...... .... 963 

Merrion & Bayless v. Jicarilla Apache Tribe ............. 963 

Mesa v. United States ............................... 970 

Mescalero Apache Tribe; New Mexico v .................... 1036 

Mescalero Apache Tribe v. O'Cheskey ........................ 959 

Meserve v. Chesapeake & Ohio R. Co ....................... 982 

Meserve; Chesapeake & Ohio R Co. v ....................... 982 

Metropolitan Airport Authority; McDonald v ............... 1002 

Metropolitan Detroit Area Hospital Services, Inc. v. United States. . 1031 

Metropolitan Govt. of Nashville & Davidson County; McDonald v. . 933 

M/G Transport Services, Inc. v. Citizens Fidelity Bank & Tr Co . 1041 

Michael M. v. California ................................. 464 

Michael M v. Superior Court of Sonoma County ................ 464 

Michael Motors, Inc. v. Colorado Dealer Licensing Bd ........... 995 

Michigan ; Binkowski v ....................................... 998 

Michigan; McGee v ......................................... 985 

Michigan v. Olah ............................................. 957 

Michigan ; Rahman v ......................................... 985 

Michigan v. Randle ........................................... 970 

Michigan v. Summers .......................................... 905 

Middlesex County Sewerage Auth. v. National Sea Clammers Assn. . 977 

Miller v. Arkansas ............................................ 1035 

Miller v. Calhoun ............................................. 914 

Miller v. Transamerican Press, Inc ............................. 1041 

Miller; Transamerican Press, Inc. v ............................ 1041 

Minnesota v. Clover Leaf Creamery Co ......................... 1027 

Minnesota; Keezer v ...................................... 930, 1035 

Mishawaka; American Electric Power Co. v .................... 960 

Mississippi; Cooper v ......................................... 926 

Mississippi; Gooch v .......................................... 923 

Mississippi; Wilson v .......................................... 982 

Missouri; AuBuchon v ........................................ 915 

Missouri v. Brown ............................................ 1027 

Missouri v. Collins ............................................ 1027 

Missouri v. Counselman ....................................... 990 

Missouri v. Greer ............................................ 1027 

Missouri v. Hawkins .......................................... 1027 

Missouri v. Martin ........................................... 1027 

Missouri v. McGee ............................................ 990 

Missouri v. Payne ............................................ 990 

Missouri; Sager v ............................................. 910 

Missouri; Smothers v ......................................... 1000 



TABLE OF CASES REPORTED xxxin 

Page 

Missouri v. White 990 

Missouri v Williams 990 

Missouri Pacific R. Co v. Alcorn 998 

Mitchell ; Macon v 1002 

MITE Corp ; Edgar v 978 

Mobil Oil Corp.; Gulf Offshore Co. v 907 

Mohegan Tribe ; Connecticut v 1028 

Molina v United States 935, 999 

Monongahela Power Co. v. United States 1035 

Montana; Commonwealth Edison Co. v 991 

Montana v. United States 544 

Montellano v. United States 1043 

Monterey County; W. W Leasing Unlimited v 915 

Montgomery v . American Airlines 920 

Montgomery County Bd. of Ed.; Syska v 961 

Moody v. Forresster 1026 

Moore; Aleem v 1044 

Moore v Baker 1043 

Moore v. United States 916, 932, 1045 

Morris; Dock v 984 

Morris; Graham v 1043 

Morris; Lowrey v 990 

Morris; Underwood v 1044 

Morrison; United States v 960 

Morton v. Schweiker 1044 

M/V Nordic Regent; Alcoa S.S. Co. v 1050 

Mountain States Legal Foundation v. Costle 1050 

Mowat v. United States 935 

Muccie v. United States 932 

Mullins v. Ohio 985 

Mumford v. United States 1041 

Muncy; Turner v 925 

Munson v. Womack 979 

Murphy; Physicians National House Staff Assn. v 917 

Murzyn v. United States 923 

Muse v. United States 984 

Nakshian; Lehman v 905, 991 

National Assn. of Broadcasters v. WNCN Listeners Guild 582 

National Gerimedical Hosp. & Gerontology Center v. Blue Cross. . . 992 

National Labor Relations Bd. ; Bristol Spring Mfg. Co. v 913 

National Labor Relations Bd.; C-F Air Freight, Inc. v 1030 

National Labor Relations Bd.; Charles D. Bonanno Linen Service v. 979 

National Labor Relations Bd.; Daniel Construction Co. v 918 

National Labor Relations Bd.; First National Maint. Corp. v 907, 978 



xxxiv TABLE OF CASES REPORTED 

Page 

National Labor Relations Bd ; Hedstrom Co. v 996 

National Labor Relations Bd. v Hendncks Ctv. Elec. Memb Corp. 964 

National Labor Relations Bd ; Hendricks Cty. Elec. Memb. Corp. v. 964 

National Labor Relations Bd ; Lone Star Steel Co. v 911 

National' Labor Relations Bd., Machine Tool & Gear, Inc. v. . . . 1040 

National Labor Relations Bd v. Malleable Iron Range Co 964 

National Labor Relations Bd ; Newspaper Printing Corp v 911 

National Labor Relations Bd ; Patterson v 1029 

National Labor Relations Bd.; Safewav Stores, Inc. v 913 

National Labor Relations Bd.; South Shore Hospital v 965 

National Labor Relations Bd ; Thomas v 996 

National Organization for Women ; Chicago v 965 

National Pork Producers Council v. Block 912 

National Republican Sen Comm. v. Demo Sen. Campaign Comm ... 964 

National Sea Clammers Assn ; EPA v 977 

National Sea Clammers Assn ; Joint Meeting, Essex & Union Ctys. v . 977 

National Sea Clammers Assn.; Middlesex Cty Sewerage Auth. v. . . . 977 

National Sea Clammers Assn.; New York City v 977 

Nebraska , Anderson v 1025 

Nebraska , Hochstein v 1025 

Nevada v United States 995 

New Hampshire Dept. of Employment Security; White v 993 

New Jersey; Athanasiou v 922 

Newman v. Commissioner 998 

New Mexico v. Mescalero Apache Tribe 1036 

New Mexico ; United States v 909 

Newport v. Fact Concerts, Inc 906, 962, 992, 1028 

Newsome ; Kentucky v 958 

Newspaper Printing Corp. v. National Labor Relations Bd 911 

Newton v. California 1030 

New York v. Belton 1028 

New York; Davis v 1043 

New York; Donohue v 927 

New York; Finlayson v 931 

New York; French v 1042 

New York; Gregg v 935 

New York; Ritz v 1037 

New York; Rogers v 926 

New York v Warner-Lambert Co 1031 

New York City v National Sea Clammers Assn 977 

New York City; Singleton v 920 

New York Dept. of Civil Service; Hunter v 999 

New York Merchantile Exchange v. Leist 910 

New York Stock Exchange; Thill Securities Corp. v 998 



TABLE OF CASES REPORTED xxxv 

Pag-e 

Nicoladze v United States 995 

Niedermeyer v Oregon 1042 

Noonan, In re 905 

Norman Williams Co ; Bohemian Distributing Co v 992 

Norman Williams Co. ; Rice v 992 

Norman Williams Co ; Wine & Spirits Wholesalers of Cal. v. . . 992 

North Carolina ; Martin v 1004 

North Carolina ; McDowell v 1025 

North Carolina ; McNeil v 915 

North Carolina State Bar; Williams v 926 

North Dakota; Sheldon v 1002 

Northern Trust Co. ; Garman v 910 

North Haven Bd of Ed. v. Bell 909 

Noyes ; Hornick v 1044 

Nuveen & Co. v. Sanders 1005 

Nylon v. Wy rick 1003 

O'Biso v. Board of Ed of Lincoln Park 982 

Occhino v. United States 968 

Occupational Safety & Health Rev. Comm'n; Continental Oil Co. v. 965 

O'Cheskey; Lung v 961 

O'Cheskey ; Mescalero Apache Tribe v 959 

O'Connell; Pena v 912 

Odom Construction Co. v. Department of Labor 966 

Official Airline Guides, Inc.; Federal Trade Comm'n v 917 

Ohio; Carabbia v 1042 

Ohio; Clumm v 926 

Ohio; Deener v 1044 

Ohio; Flynt v 963 

Ohio; Goode v 903 

Ohio ; Hargrove v 968 

Ohio; Lockett v 931 

Ohio; Mullins v 985 

Ohio; Papp v 960 

Ohio; Payne v 1035 

Ohio; Steele v 931 

Ohio v. Thompson 917 

Ohio; Williams v 1043 

Ohio ; Young v 985 

Oklahoma; Chaney v 1025 

Oklahoma; Eddings v 1040 

Oklahoma; Johnson v 1026 

Oklahoma; Leachman v 1033 

Oklahoma; Texas v 905, 1038 

Oklahoma; Watkins v 957 



xxxvi TABLE OF CASES REPORTED 

Page 

Olah ; Michigan v 957 

Oldag v Catholic Charities of Galveston-Houston Diocese 1025 

Olegario v United States 980 

Ohff ; Sax v 915 

Oliver v. Cuyler 928 

Oltersdorf v. Chesapeake & Ohio R Co 920 

138 30 Acres of Land ; Georgia Powpr Co. v 936 

Orange County v Donovan 966 

Oregon ; Anderson v 924 

Oregon; Davis v 1032 

Oregon; Frame v 968 

Oregon ; Mathews v 1040 

Oregon ; Niedermeyer v 1042 

Original Appalachian Artworks, Inc ; Lawson v 929 

Orpiano v. Horsley 985 

Orpiano v. Johnson 929 

Orr ; Holmes v 932 

Orr ; Karlin v 996 

Osborne v United States 932, 934 

Ostroff, In re 976 

Ouimet Corp. v. Pension Benefit Guaranty Corp 914 

Outing v. Smith 1001 

Outlaw v. Illinois 983 

Overberg; Johnson v 1004 

Owchariw v. Lahr 985 

Owensby v. United States 1001 

Pacific Legal Foundation v Costle 914 

Pacileo v. Walker 960 

Packard v. Louisiana 928 

Page Airways v. Associated Radio Service Co 1030 

Paladino v. United States 1032 

Palmeri v. United States 967 

Papp v. Ohio 960 

Parks v. Virginia 1029 

Parsons v. Illinois 1044 

Parsons ; Richards v 1003 

Pasatiempo Development Corp.; Hospital Workers v 918 

Pasco Petroleum Co. v. United States 995 

Passaro v. Pennsylvania 929 

Pathway Bellows, Inc. v Blanchette 915 

Patricelli v. Mecca Ltd 971 

Patt, In re 905 

Patterson v National Labor Relations Bd 1029 

Patterson; Stovall v 1037 



TABLE OF CASES REPORTED 

Page 

Patterson v. United States 925 

Payne ; Missouri v 990 

Payne v Ohio 1035 

Payte v. United States 995 

Pena v. O'Connell 912 

Penello v. United States 912 

Pennsylvania ; DePaul v 1003 

Pennsylvania ; Passaro v 929 

Pennsylvania ; Tabb v 1000 

Pennsylvania Bd of Probation and Parole v. Bronson 1050 

Pennsylvania Unemployment Comp. Bd. of Review; Severa v. .. . 1033 

Pension Benefit Guaranty Corp.; Ouimet Corp. v 914 

Penthouse International, Ltd. v. Rancho La Costa, Inc 902 

Peoples Bank of Indianola v Equal Employment Opp Comm/n. . . . 996 

Peterson ; Harris v 932 

Peterson v. Sorlien 1031 

Petrofsky v. United States 968 

Petrof Trading Co. v United States 968 

Petrovsky ; Widemon v 986 

Petty v Jackson 1043 

Philadelphia; Ehrman v 997 

Philadelphia ; Stadler v 997 

Philippine Air Lines; MacArthur v 985 

Phillips v. Benton 926 

Phillips v. Carey 985 

Phillips v Massachusetts 929 

Phillips; Smith v 909 

Phillips Petroleum Co.; Sewell v 997 

Phipps v. Brown 932, 1035 

Physicians National House Staff Assn. v . Murphy 917 

Pincus v. Greenberg's Estate 961 

Piper Aircraft Co. v. Reyno 909 

Pittsburgh National Bank; Grcich v 997 

Police Comm/r of New York City; Concerned Jewish Youth v 913 

Polk County v. Dodson 963, 992 

Pond v. Waiden 993 

Portillo v. United States 1043 

Portland Cement Co. of Utah; Commissioner v 156 

Portley v. Grossman 962 

Potts v. Court of Criminal Appeals of Tex 969 

Powers v. Buchanan 1034 

Pratt v. United States 904 

Pratte; John L. Schulz Plumbing & Heating v 999 

Preacher v. EsteUe 930 



xxxvni TABLE OF CASES REPORTED 

Page 

President of United States; Bowler v 923 

Prince Edward School Foundation v. United States 944 

Printing & Graphic Communications Union v Collier 914 

Proca v United States 960 

Prosecuting Attorney for 6th Jud Dist of Ark r. Womack 979 

Pruitt v. Leeke 928 

Pry v. United States 925 

Public Service Comm'n of Mo ; Utility Consumers Council i 1042 

Public Service Comm'n of N. Y ; Rochester Gas & Electric Corp. v. 961 

Public Service Comm'n of Tenn v. Louisville & Nashville R Co 959 

Public Utilities Comm'n of Gal.; Southern Pacific Transp Co. v 902 

Puchala v Cointelpro 1004 

Puerto Rico ; Ramos v 984 

Puerto Rico v. S.S. Zoe Colocotroni 912 

Puerto Rico ; S S Zoe Colocotroni v 912 

Puerto Rico Maritime Shipping Auth.; Caribe Trailer Sj'stems v. , . . 914 

Purvis v. Commissioner 997 

Pusch v. Commissioner 930, 1050 

Putnam ; De Vincent v 1005 

Quick v. United States 920 

R. v. Taylor County Child Welfare Unit 989 

Radcliff Materials, Inc ; Texas Industries, Inc. v 905 

Ragu Foods, Inc. v. Hunt- Wesson Foods, Inc 921 

Rahman v. Michigan 985 

Railway Carmen v. Donovan 980 

Railway Labor Executives' Assn. v. Gibbons 908 

Ramapuram v. United States 1030 

Ramirez, In re 978 

Ramos v. Lamm 1041 

Ramos; Lamm v 1041 

Ramos v. Puerto Rico 984 

Rancho La Costa, Inc.; Penthouse International, Ltd. v 902 

Randell v. United States 1041 

Randle; Michigan v 970 

Rashkind v. Marrero 913 

Ray v. Freeman 997 

Raybestos-Manhattan, Inc.; Alessi v 906 

Reagan; Bowler v 923 

Rector, Churchwardens & Vestrymen; Hopkins v 915 

Redd v. Lambert 1040 

Redding v Commissioner 913 

Regan v United States 933 

Regional Director, NLRB; Countryman v 929 

Reichstein v. Briggs 919 



TABLE OF CASES REPORTED 



XXXIX 



Page 

Rembold v Christ Hospital 903 

Rembold v Elizabeth Gamble Deaconess Home Assn 903 

Reporters Committee for Freedom of Press ; Kissinger v 992 

Review Bd of Ind Employment Security Division ; Thomas v . . 707 

Reyno ; Hartzell Propeller, Inc v 909 

Reyno ; Piper Aircraft Co. v 909 

Reynolds v. Reynolds 1036 

Rheuark v Dallas County 931 

Rhodes v. Chapman 906 

Rhodes v. Estelle 1033 

Rice; Carothers v 998 

Rice v. Norman Williams Co 992 

Richard v. United States 1033 

Richards v. Parsons 1003 

Richey v. Blackburn 1001 

Ridgway v Ridgway 979 

Riggs v. Board of Trustees of Ohio State TJniv 1026 

Riggs v. Terrazas 921 

Risjord; Firestone Tire & Rubber Co. v 1028 

Ritz v. New York 1037 

Rizzo v. Davis 919 

Robbins v. California 1039 

Robert E Kurzius, Inc. v. Upper Brookville 1042 

Roberts, In re 908 

Roberts Airways v. Cortese 981 

Robinson v. Arizona 1044 

Robinson v. Sanders 926 

Robinson v. Stephenson 926 

Robinson v. Virginia 927 

Rochester Gas & Electric Corp. v. Public Service Comm'n of N. Y. . . 961 

Rogers v. New York 926 

Rohl v. United States 932 

Rollins International, Inc. v. Staub 920 

Romero; Anaya v 936 

Ronwin v. Segal 1041 

Rosario v. United States 1000 

Rose v. Lundy * 910 

Rose; McKeldin v 969 

Rosener ; Sears, Roebuck & Co. v 1051 

Rosewell v. LaSalle National Bank 503 

Respond, In re 976 

Rostker v. Goldberg 906, 963 

Rowan Cos. v. United States 1028 

Rowbotham v. American Airlines 989 



XL TABLE OF CASES REPORTED 

Paso 

Rowe v Arkansas 1043 

Rowley; Board of Ed of Hcndrick Hudson Central School Dist v. 907 

Ruiz v. Texas 962 

Russeau; Amadeo v. 1035 

Rustamier; Cloudy v 933 

Rustamier ; Young v 933 

Rutherford, In re 908 

Rutledge v. Wainwright 1033 

B.,Inre 929 

Safeway Stores, Inc v. National Labor Relations Bd 913 

Safir /Chudnoff 914 

Sager v Missouri 910 

St. Luke's Hospital Center; Shao Fen Chin v 902 

Salinas; Southern Pacific Transportation Co. v . . 902 

Sanchez v. Tucson Unified School Dist. No 1 912 

Sand v United States 996 

Sandate v. United States 922 

Sanders ; John Nuveen & Co , Inc. v 1005 

Sanders ; Robinson v 926 

San Diego ; San Diego Gas & Electric Co. v 621 

San Diego Gas & Electric Co v. San Diego 621 

Sangster v. United States 1044 

San Juan Hotel Corp ; Greenberg v 1043 

San Mateo v Cantwell 998 

Santosky v Kramer 993 

Sarsycki v, Hess 985 

Sasser v. Alabama 924 

Saunders ; LeClair v 959 

Saundcrs v. Lehman 980 

Savory; Illinois v 989 

Sax v. Oliff 915 

Scarpelli v. Illinois 915 

Schiff v. United States 962 

Schmidt, In re 1037 

Schmitt; Common Cause v 908 

Schulz Plumbing & Heating v. Pratte 999 

Schuster; California v 1042 

Schwallier v. United States 1042 

Schwartz v. Coastal Resources Management Council 981 

Schweiker; Dunaway v 934 

Schweiker; Green v 1032 

Schweiker v. Hansen 785 

Schweiker; Henderson v 985 

Schweiker; Homan & Crhnen, Inc. v 975 



TABLE OF CASES REPORTED XLI 

Page 

Schweiker; Morton v 1044 

Schweiker ; Walters v 924 

Schweiker v. Wilson 221 

Sears, Roebuck & Co v Rosener 1051 

Secretary, N. C Dept. of Transportation v Hall 965 

Secretary of Agriculture; National Pork Producers Council v 912 

Secretary of Air Force ; Holmes v 932 

Secretary of Air Force , Karlin v 996 

Secretary of Commerce; Federation for Am Immigration Reform v. 995 

Secretary of Defense v. Catholic Action of Hawaii/Peace Ed. Proj . 1039 

Secretary of Education; North Haven Bd. of Ed. v 909 

Secretary of Health and Human Services; Dunaway v 934 

Secretary of Health and Human Services; Feliciano v 1005 

Secretary of Health and Human Services; Green v 1032 

Secretary of Health and Human Services v. Hansen 785 

Secretary of Health and Human Services; Henderson v 985 

Secretary of Health and Human Services; Homan & Cnmen, Inc. v. 975 

Secretary of Health and Human Services; Morton v 1044 

Secretary of Health and Human Services; Watters v 924 

Secretary of Health and Human Services v. Wilson 221 

Secretary of Interior v Energy Action Educational Foundation 1040 

Secretary of Interior; Hopland Nokomis Assn. v 980 

Secretary of Interior; McCall v 996, 997 

Secretary of Labor; BP Oil, Inc. v 991 

Secretary of Labor; Brown Insulating Systems, Inc. v 912 

Secretary of Labor v. Dewey 1029 

Secretary of Labor; Ellis Fischel State Cancer Hospital v 1040 

Secretary of Labor; Glassboro Service Assn. v 1040 

Secretary of Labor ; Orange County v 966 

Secretary of Labor v. Railway Carmen 980 

Secretary of Navy v. Nakshian 905, 991 

Secretary of Navy; Saunders v 980 

Secretary of Transportation ; Burbank Anti-Noise Group v 965 

Securities and Exchange Comm'n; Steadman v 91 

Segal; Ronwin v 1041 

Selco Supply Co. v. Environmental Protection Agency 1030 

Severa v. Pennsylvania Unemployment Comp. Bd. of Review 1033 

Sewell v. Phillips Petroleum Co 997 

Shaheen v. U. S. District Court 917 

Shakespeare Co. v. Fury Imports, Inc 921 

Shao Fen Chin v. St. Luke's Hospital Center 902 

Shapiro v. Florida 982 

Shartel v. Blasingham 921 

Shaw v. University of Tex. Health Science Center at Dallas 1026 



XLII TABLE OF CASES REPORTED 

Paprc 

Shawano Lake Sanitary Dist. No. 1 ; Abdella v 1041 

Sheet Metalworkers v Carter 949 

Sheldon v. North Dakota 1002 

Shell v United States 1001 

Shell Oil Co. v Department of Energy 1024 

Shell Oil Co ; Soweco, Inc. v 981 

Shelnut v. United States 983 

Shelton v. United States 1043 

Shepphard v. Circuit Court of Clark County, Ind 984 

Sherwood ; Diamond v 994 

Shields v. United States National Bank of Oregon 966 

Shillinger; Bradenburg v . . 984 

Short v, Kittrell 913 

Short; Texaco, Inc v 993 

Shoshone Tribe v. Dry Creek Lodge, Inc 960 

Shuler v. Garrison . . 928 

Sicmski; Allott v 920 

Siebert ; Consumers Union of United States, Inc. v 901 

Siffnn Residential Assn for Developmentally Disabled v. Garcia... 911 

Silverman v. United States 913 

Simpson v Georgia 972 

Sims ; Engle v 936 

Singleton v. New York City 920 

Sircy v. United States 918 

Sitton v Texas 902 

Skinner v. South Carolina 931 

Slabaugh ; Grooms v 1026 

Smith v. Ford Motor Co 918 

Smith ; Forman v 1001 

Smith v. Georgia 922 

Smith; Howe v 993 

Smith; Kadet v 931 

Smith; Kanasola v 930 

Smith; Outing v 1001 

Smith v. Phillips 909 

Smith v. United States 918, 920, 934 

Smith v. Washington 932 

Smothers v. Missouri 1000 

Snell v. United States 957 

Solomon v. Fusco 926 

Sonitrol Corp. v. Bennett 901 

Soo Line R. Co. v. East Troy 922 

Sorlien; Peterson v 1031 

South Carolina; Barber v 924 



TABLE OF CASES REPORTED XLHI 

Page 

South Carolina ; Jenkins v 1030 

South Carolina ; Skinner v 931 

Southern Pacific Transp Co v. Public Utilities Comm'n of Cal . 902 

Southern Pacific Transp Co v Salinas 902 

Southridge Cooperative Section 4, Inc ; Jamil v 919,1050 

South Shore Hospital v National Labor Relations Bd 965 

Sowders ; Coleman v 984 

Sowders ; Hockenbtiry v 933 

Sowders ; Sullivan v 930 

Soweco, Inc v Shell Oil Co 981 

Spahler, In re 908 

Spain ; Harris v 985 

Sparrow v. United States 1004 

Special Agent, FBI; Welch v 969 

Spencer v Howe Richardson Scale Co 982 

Spencer v Israel 1032 

Spikes v. United States 934 

Stacks v United States 1004 

Stadler v. Philadelphia 997 

Stahl ; Drummond v 967 

Stalder v. United States 921 

Standard Register Co. v. Graphic Arts International Union 967 

Stanmore v. United States 1004 

State. See name of State. 

State Bar of California; Mansfield v 997 

Statum v. Louisiana 969 

Staub; Rollins International, Inc. v 920 

Steadman v. Securities and Exchange Comm'n 91 

S.S. Zoe Colocotroni v Puerto Rico 912 

S.S. Zoe Colocotroni; Puerto Rico v 912 

Steele v. Ohio 931 

Stein v. Frank 990 

Stein v. Hill 1027 

Stemple v. Board of Ed. of Prince George's County 911 

Stephenson ; Robinson v , 926 

Sterritt, In re 1039 

Stevlich v. United States 975, 1000 

Stewart Mechanical Enterprises, Inc.; Jewish Hospital Assn. v 966 

Stewart- Warner Corp. v. Western Electric Co 971 

Stovall v. Patterson 1037 

Streets v. United States 1034 

Strickland, In re 976 

Stricklin v. United States 924 

Sullivan v. Sowders 930 



XLIV TABLE OF CASES REPORTED 

Page 

Sullivan v. United States 923 

Summers ; Michigan v 905 

Superintendent, Cal Medical Facility at Vacavillo ?'. Gibson 1035 

Superintendent of Banks of N Y ; Consumers Union of U. S. v. . 901 
Superintendent of penal or correctional institution See name or 

title of superintendent 

Superior Court of Cal , Alameda Cty ; Canadian Mountain Holidays v Oil 

Superior Court of Cal , Contra Costa County; Valentino v 928 

Superior Court of Cal , Monterey County; Aviles v 930 

Superior Court of Sonoma County ; Michael M. v 464 

Supreme Court of Ark Comm on Professional Conduct; Eaton v. . . 966 

Supreme Court of NT H ; Drociak v 989 

Supreme Court of S D ; Weisensee v 1032 

Sutton v United States 1034 

Syska v Montgomery County Bd. of Ed 961 

Syski v. Virginia 915 

Tabb v. Pennsylvania 1000 

T. A F.; B. F. v 1037 

Taggart Corp v. Efros 1030 

Tann v. United States 1031 

Taylor v. Alabama 911 

Taylor; Haugen v 1041 

Taylor v. Wainwright 1033 

Taylor County Child Welfare Unit; W. D. R. v 989 

Teamsters v. Arkansas-Best Freight System, Inc 980 

Teichgraeber v. Commissioner 981 

Teltromcs Services, Inc. v. "L. M. Ericson Telecommunications, Inc. . 978 

Tema Oil Co. v. Federal Energy Regulatory Comm'n 915 

Teng v. United States 930 

Tennessee; McDonald v 983 

Terrazas; Riggs v 921 

Territory. See name of Territory. 

Texaco, Inc. ; Arceneaux v 928 

Texaco, Inc. v. Short 993 

Texas; Bland v 924 ; 1035 

Texas; California v 961, 977, 1027, 1038 

Texas; Compton v 997 

Texas; Davis v 968 

Texas; Gooden v 960 

Texas; Johnson v 929 

Texas; Mcllroy v 998 

Texas v. Oklahoma 905, 1038 

Texas; Ruiz v 962 

Texas; Sitton v 902 



TABLE OF CASES REPORTED XLV 

Page 

Texas Dept of Community Affairs v Burdine 248 

Texas Industries, Inc v. Radcliff Materials, Inc 905 

Theriault v. Establishment of Religion in Fed Bur of Prisons. . . 929, 1035 

Thill Securities Corp. v New York Stock Exchange 998 

Thingvold v. Franzen 1034 

Thomas ; Blackburn v 953 

Thomas v National Labor Relations Bd 996 

Thomas v. Review Bd. of Ind. Employment Security Division 707 

Thomas v. United States 931 

Thompson ; Ohio v 917 

Thornton v. Alabama 998 

Timmons v. Franzen 933 

Tolliver v. United States 935 

Toner v. Commissioner 916 

Toner v . Hanna 919 

Tourville v. United States 920 

Town. See name of town. 

Transamerican Press, Inc. v. Miller 1041 

Transamerican Press, Inc ; Miller v 1041 

Trans World Airlines; Flight Attendants v 979 

Trans World Airlines v Zipes 979 

Trans World Airlines ; Zipes v 979 

Treasurer of Cook County v. LaSalle National Bank 503 

Trespalacios ; Grinan v 961 

Truck Drivers; Gilmer v 1030 

True v. Commissioner 916 

Trueblood, Johnson v 999 

Tucker v. United States 934 

Tucson Unified School Dist. No. 1 ; Sanchez v 912 

Turner v. Muncy 925 

Turner v. United States 912, 968 

Two Rivers Co. v. Curtiss Breeding Service 920 

Underwood v. Morris 1044 

Union For labor union, see name of trade. 

Union Carbide Agricultural Products Co. v. Costle 996 

Union Pacific R. Co.; Boise Cascade Corp. v 995 

United Gas Pipe Line Co. v. Federal Energy Regulatory Comm'n. . 911 

United Parcel Service, Inc.; Kohls v 931 

United States; Aebischer v 934 

United States; Aetna Ins. Co. v 1025 

United States; Aid Ins. Co. v 1025 

United States; Aiken v 996 

United States ; Albernaz v 333 

United States; Allison v 1044 



XLVI 



TABLE OF CASES REPORTED 





Page 


United States; American Fruit Purveyors, Inc. v 


997 


United States; Anderson v 


912,920 


United States; Anthony J Bertucci Construction Co v. 


... . 917 


United States, Antoni v 


984 


United States; Appalachian Ins Co v 


1025 


United States , Arbolcda v 


917 


United States; Armored Transport, Inc. v 


965 


United States; Armstrong v 


934 


United States , Arshal v , 


1050 


United States; A very i> .. 


933 


United States; Bagloy ?'. . 


994 


United States; Baker v 


925, 1040 


United States; Baldwin v 


1045 


United States, Baptistc v . . . . 


1000 


United States, Barham r 


1002 


United States; Barker v 


919 


United States; Bartz v. 


967 


United States , Baskes v 


020,1000 


United States ; Basso v 


965 


United States; Bauer v 


1031 


United States; Begay v , 


1040 


United States ; Beran v 


999 


United States ; Bertrand v 


1004 


United States; Blodgett v 


921 


United States ; Boni v , 


925 


United States ; Brooklier v 


9SO 


United States ; Brooks v , 


926,927 


United States; Broughton v 


930 


United States ; Brown v 


1045 


United States , Bumpus v 


997 


United States; Burlinson v , 


1030 


United States; Burnham Van Service, Inc. v 


912 


United States; Burns v 


1000 


United States; Burton v 


968 


United States; Butz v 


969 


United States; Caldwell v 


1002 


United States; Calhoun v 


924 


United States; Caliguri v 


985 


United States; Campisano v 


967 


United States; Cantera-Duyos v 


1000 


United States; Carbone v 


916 


United States ; Cariello v 


983 


United States; Carter v 


968 


United States, Casarez-Ulloa v. 


999 



TABLE OF CASES REPORTED 



XLVII 



United 
United 
United 
United 
United 
United 
United 
United 
United 
United 
United 
United 
United 
United 
United 
United 
United 
United 
United 
United 
United 
United 
United 
United 
United 
United 
United 
United 
United 
United 
United 
United 
United 
United 
United 
United 
United 
United 
United 
United 
United 
United 
United 
United 



Page 

States , Castelli v 957 

States; Certain Unindicted Individuals & Corporations v. . . 913 

States ; Chacon v 923 

States ; Chagra v 1032 

States ; Chavez v 924 

States ; Chin v 923 

Chrisman v 1034 



States; 

States; Cimino v. 

States v. Clark 

States; 
States; 
States: 



1005 
993 



Claybrooks v 934 

Cole v 1043 

Coletti v 911 

States ; Corey v 925 

States; Cotton v 1032 

States ; Couch v 1000 

States; Culbreth v 968 

States; D'Angelo v 969, 986 

States ; D'Antignac v 967 

States; DeJarnette v 1004 

States ; DeLoach v 933 

States; DeLucca v 983 

States; Demanett v 910 

States ; DeVincent v 984 

States; DiGilio v 936 

States; Dizak v 1032 

States ; Drummond v 1045 

States; Dufur v 925 

States; Eades v 1001 

States ; Edmon v 969 

States; Egan v 983 

States; Elcan v 1050 

States; Emch v 966 

States; Emory v 917 

States; Enstam v 912 

States ; Erickson v 929 

States; Euge v 960 

States; Ferreboeuf v 934 

States ; Fontanez v 935 

States ; Freeman v 910 

States; Gabbard v 1004 

States; Gan v 975 

States; Garner v 923 

States ; Garrett v 918 

States; General Portland Cement Co. v 983 



XLVIII 



TABLE OF CASES REPORTED 



Pago 
933 
981 
920 
981 
994 
986 



United States ; George v 

United States , Georgia Power Co v 

United States ; Gerald v 

United States ; Gerdes *' 

United States ; Gomez v 

United States , Gonzalez v 

United States; Graham v 1034 

United States; Grassi v 956 

United States; Gray v 927 

United States ; Guardiola v 994 

United States; Guerra v 934 

United States; Gunston v 1034 

United States; Ha ckett v 1001 

United States, Hale v 932 

United States; Hall v 923 

United States; Hanigan v 982 

United States; Hatcher v 921 

United States; Havens v 995 

United States ; Haymes v 1005 

United States; Hays v 965 

United States; HCSC-Laundry v 1 

United States; Hedman v 965 

United States; Hensler v 980 

United States v. Hicks 1036 

United States; Hockcr v 1002 

United States, Holland v 1004 

Hopkinson v 969 

Horton v 1032 

Hospital Central Services Assn. v 911 



United States; 
United States; 
United States; 
United States; 



Hullum v. 



995 



United States ; Ingram v 986 

United States; Ivory v 932 

United States ; Jacks v 934 

United States; Jackson v 918 

United States; Jastrzebski v 914 

United States; Jefferson County v 901 

United States; Jenkins v 970 

United States ; Johnson v 991 

United States; Jones v 916, 967 

United States; Justice v 923 

United States; Kavaja v 1000 

United States; Kelley v 1005 

United States; Kett v 1000 

United States; Landis v 918 



TABLE OF CASES REPORTED 



XLIX 



Page 

United States ; Laurents v 1001 

United States v Lee ... 993 

United States ; Lee v 935 

United States; Lentz v 995 

United States ; Lewis v 924, 935 

United States; Littles v 969 

United States ; Livingston v 914 

United States ; London v 919 

United States ; Loucas v 1030 

United States; Luttrell v 935 

United States ; Maddox v 931 

United States ; Mann v 994 

United States ; Martier v 914 

United States; Martinez v 922, 994 

United States ; Massey v 969 

United States; Matthews v 962 

United States ; Mazella v 931 

United States; Mazza v 967 

United States; McCoy v 935 

United States; McFadden v 1043 

United States; McFarlajid v 1029 

United States ; McGovcrn v 911 

United States; McWilliams v 1004 

United States; Mesa v 970 

United States; Metropolitan Detroit Area Hospital Services, Inc. v. 1031 

United States; Molina v 935, 999 

United States; Monongahela Power Co. v 1035 

United States ; Montana v 544 

United States; Montellano v 1043 

United States; Moore v 916, 932, 1045 

United States v. Morrison 960 

United States; Mowat v 935 

United States; Muccie v 932 

United States; Mumford v 1041 

United States; Murzyn v 923 

United States; Muse v 984 

United States; Nevada v 995 

United States v. New Mexico 909 

United States; Nicoladze v 995 

United States; Occhino v 968 

United States; Olegario v 980 

United States; Osborne v 932, 934 

United States; Owensby v 1001 

United States; Paladino v 1032 



TABLE OF CASES REPORTED 



United States ; Palmen v ..................... ... 967 

United States, Pasoo Petroleum Co , Inc ?' ..... 905 

United States; Patterson v ......... 925 

United States; Pnvte r . . ...... . 995 

United States; Penello v ..................... 912 

United States; Petrofsky v ..................... 968 

United States; Petrof Trading Co v .............. ... 968 

United States; Portillo v .................................. 1043 

United States, Pratt v ............................. 904 

United States; Prince Edward School Foundation v ......... 944 

United States; Proca v .............. 960 

United States; Prv v ......................... . 925 

United States; Quick v. .. . ..... . . 920 

United States; Ramapuram v ......................... 1030 

United States; Randell v .................................. 1041 

United States; Regan v ............................. 933 

United States; Richard v .................................. 1033 

United States; Rohl v .................................... 932 

United States, Rosario v ................................ 1000 

United States; Rowan Cos. v .............................. 1028 

United States; Sand v .................................... 996 

United States; Sandate v ................................... 922 

United States ; Sangster v .................................... 1044 

United States; Schiff v ....................................... 962 

United States; Schwallier v ................................... 1042 

United States; Shell v ...................................... 1001 

United States; Shelnut v ................................ 983 

United States; Shelton v ...................................... 1043 

United States; Silverman v .................................... 913 

United States; Sircy v ........................................ 918 

United States; Smith v ................................. 918, 920, 934 

United States; Sparrow v ..................................... 1004 

United States; Spikes v ....................................... 934 

United States; Stacks v ....................................... 1004 

United States; Stalder v ....................................... 921 

United States ; Stanmore v ..................................... 1004 

United States; Stevlich v ................................... 975, 1000 

United States; Streets v ...................................... 1034 

United States; Stricklin v ............................. . ....... 924 

United States; Sullivan v ...................................... 923 

United States; Button v ............................ . .......... 1034 

United States; Tann v ........................................ 1031 

United States; Teng v ........................................ 930 

United States; Thomas v ...................................... 931 



TABLE OF CASES REPORTED 



Page 

United States ; Tolliver v 935 

United States , Tourville v 920 

United States ; Tucker v 934 

United States; Turner v 912, 968 

United States ; Yasser v 928 

United States ; Viars v 922 

United States v Vogel Fertilizer Co 994 



United States 

United States 

United States 

United States 

United States ; Watson v . . 

United States; Wegner v. 

United States 



Von Barta v 998 

Walker v . . . 1000 

Ward v 932 

Waters v 996 

1004 

999 

Welch?; 967 



United States; 

United States; 

United States; Witherspoon v 

United States : Wolfson v . . . . 



United States; White v 1034 

United States ; Whitney v 969, 1004 

United States ; Wickizer v 935 

United States ; Wilkey v . 1000 

Williams v 919, 1043 

Willis v 1005 

933 

918 

United States; Woods v 934 

United States; Wright v 970 

United States; Wyche v 919 

United States; Yip v 975 

United States; Zeldes v 983 

United States; Zockman v 933 

United States; Zuccaro v 1037 

U. S. Consumer Product Safety Comm'n; Zuckerman v 934 

U. S, District Court; Faison v 932 

U. S. District Court; Shaheen v 917 

U. S. District Court; Wood v 995 

U. S. Distnct Judge; Holsey v 984 

U. S. Industries/Federal Sheet Metal, Inc. v. Director, OWCP 979 

U. S. Marshal; Castillo v 922 

U. S. Marshal; Dorta v 991 

United States National Bank of Oregon; Shields v 966 

U. S. Parole and Probation Dept ; Illsley v 1032 

U. S. Railroad Retirement Bd. v. Fritz 960 

United States Steel Corp. v. Christ 980 

Universities Research Assn. v. Coutu 754 

University of Tex. v. Camemsch 907, 978 

University of Tex. Health Science Center at Dallas; Shaw v 1026 



LII TABLE OF CASES REPORTED 



Umvm v Vermont ............................. 1033 

Upper Brookville, Robert K Kurzms, Inc r ............ 1042 

Utility Consumers Council of Mo ?. Public Service Comm'n of Mo 1042 

Valentino v. California ................................. 928 

Valentino v. Superior Court of Cal , Contra Costa Count v . . , 928 

Valley Forge Christian College v. Americans for Sep. of Church & St . 909 

Vasser v. United States ................................ 928 

Vaughn; Westinghousc Electric Corp v ..................... 972 

Velasquez ; California v ..................................... 904 

Vermont ; Umvin v ................................ 1033 

Viars v. United States ....................................... 922 

Vic's Garage v. Fusco .................................. 926 

Village. See name of village. 

Vincent ; Widmar v ........................................ 909 

Virginia; Fear v ......................................... 1040 

Virginia ; Flenner v ...................................... 930 

Virginia; Goolsby v ....................................... 1001 

Virginia ; Harris v ........................................... 915 

Virginia; Hill v ............................................... 930 

Virginia; Parks v ........................................... 1029 

Virginia; Robinson v ........................................ 927 

Virginia; Syski v ..................... . ........................ 915 

Virginia Academy of Clinical Psychologists; Blue Shield of Va. v. . . 916 

Virgin Islands ; Francis v ...................................... 1005 

Vitoratos v Engle ............................................. 1044 

Vogel Fertilizer Co ; United States v ........................... 994 

Von Barta v. United States .................................. 998 

W ; Louisiana v ............................................. 994 

Wamwright ; Castello v ........................................ 1034 

Wainwright; Rutledge v ....................................... 1033 

Wainwright ; Taylor v ......................................... 1033 

Walden; Pond v .............................................. 993 

Walker; Haid v ............................................... 927 

Walker; Pacileo v ............................................. 960 

Walker v. United States ....................................... 1000 

Walsh, In re .................................................. 905 

Walter; Diamond v ........................................... 995 

Walter Fleisher Co. v. Los Angeles County ...................... 1027 

Walters; Inexco Oil Co. v ...................................... 999 

Wang; Immigration and Naturalization Service v ................ 139 

Ward v. United States ......................................... 932 

Warden. See also name of warden. 

Warden; Cleveland v ......................................... 929 

Warden; Davis v ............................................. 1002 



TABLE OF CASES REPORTED L m 

Page 

Warden ; Fallin v 926 

Warner-Lambert Co ; New York v 1031 

Washington v Daugherty 95g 

Washington v. Dyer 970 

Washington v Marks 969 

Washington ; Smith v 932 

Washington County v. Gunther 907, 963 

Waste Management of Wisconsin, Inc v. Fokakis 960 

Waters v United States 996 

Watkins, In re 90S 

Watkms ; Holsey v 984 

Watkins v Martin 929 

Watkins v, Oklahoma 957 

Watson v. United States 1004 

Watt v Energy Action Educational Foundation 1040 

Watt ; Hopland Nokomis Assn. v 980 

Watt ; McCall v 996, 997 

Watters v. Schweiker 924 

Watts v. Civil Service Bd. for City of Columbia 983 

W. D R. v. Taylor County Child Welfare Unit 989 

Weaver v. Graham 24 

Weber v. Barrett 1022 

Wegner v. United States 999 

Weidman Metal Masters Co v Glass Master Corp 982 

Weinberger v. Catholic Action of Hawaii/Peace Ed. Project 1039 

Weisensee v. Supreme Court of S. D 1032 

Welch, In re 908 

Welch v. Hickey 969 

Welch v. United States 967 

Welsh; Gibbs v 981 

West; Doe v 971 

Western Catholic Church v. Commissioner 981 

Western Electric Co ; Stewart-Warner Corp. v 971 

Westinghouse Electric Corp. v. Vaughn 972 

Wexler v. Industrial Valley Bank & Trust Co 1034 

Whack v. Maryland 990 

White; Missouri v 990 

White v. New Hampshire Dept. of Employment Security 993 

White v. United States 1034 

Whitney v. United States 969, 1004 

Whitted v. Lyall 1042 

Wickizer v. United States 935 

Widemon v. Petrovsky 986 

Widmar v. Vincent 909 



LIV 



TABLE OF CASES KEPORTED 



Wiesner v Willkie Farr & Gallagher 902 

Wilkey v. United States 1000 

Willcott ; Kinnell v 984, 1050 

Williams; Alioto v 1012 

Williams v Evangelical Retirement Homes of Greater St Louis . 1002 

Williams^ Friendship Village 1002 

Williams ; Graves v 930 

Williams v Indiana 971 

Williams v. Louisiana 971 

Williams ; Missouri v 990 

Williams v North Carolina State Bar 926 

Williams v. Ohio 1043 

Williams v. United States 919,1043 

Williams; Zobel v 908 

Williams Co , Bohemian Distributing Co. v 992 

Williams Co.; Rice v 992 

Williams Co ; Wine & Spirits Wholesalers of California v 992 

Williamson v . Kimbrough 1042 

Willis v. United States 1005 

Willkie Farr & Gallagher; Wiesner v 902 

Wilson v. California Health Facilities Comm'n 1036 

Wilson v. Georgia 971 

Wilson v Mississippi 982 

Wilson ; Schweiker v 221 

Wine & Spirits Wholesalers of California v. Norman Williams Co. ... 992 

Wing Ding Chan v. Immigration and Naturalization Service 921 

Winston v. Eby 1031 

Wisconsin; Camacho v 999 

Wisconsin; Cramer v 924 

Wisconsin; Jones v 1033 

Wisconsin; McKinnie v 1033 

Wisconsin ex rel. La Follette; Democratic Party of U.S. v 107 

Witherspoon v. United States 933 

WNCN Listeners Guild; American Broadcasting Cos. v 582 

WNCN Listeners Guild; Federal Communications Comm'n v 582 

WNCN Listeners Guild; Insilco Broadcasting Corp. v 582 

WNCN Listeners Guild; National Assn. of Broadcasters v 582 

Wofford v. Harris 928 

Wolf, In re 977 

Wolfson v. Baker 966 

Wolfsou v. United States 918 

Wolski v. Illinois 915 

Womack; Munson v 979 

Wong v. Carlson 933 



TABLE OF CASES REPORTED LV 

Page 

Wood; Brouillette v 1044 

Wood v. Five Points Shopping Center 995 

Wood v. Georgia 261 

Wood v. II. S. District Court 995 

Woods v. United States 934 

Worcester Housing Authority ; Larose v 925 

Wright v. Bombard 935 

Wright v. Florida 923 

Wright v. United States 970 

W. W. Leasing Unlimited v. Monterey County 915 

Wyche v. United States 919 

Wyrick v. Henson 958 

Wyrick; Nylon v 1003 

Yaretsky v. Blum 925 

Yin-Ho Wong v. Carlson 933 

Yip v. United States 975 

Young v. Ohio 985 

Young v. Rustamier 933 

Zdanis v. Connecticut 1003 

Zeldes v. United States 983 

Zimmerman Brush Co.; Logan v 909 

Zipes v. Trans World Airlines 979 

Zipes; Trans World Airlines v 979 

Zipp; Countryman v 929 

Zobel v. Williams 90S 

Zockman v. United States 933 

Zoning Administrator of Dallas; Williamson v 1042 

Zuccaro v. United States 1037 

Zuckerman v. U. S. Consumer Product Safety Comm'n 934 



TABLE OF CASES CITED 



Page 
Abernathy v. Carpenter, 208 

F. Supp. 793 542 

Abmgton School Dist. v. 

Schempp, 374 U. S. 203 724-727 
Abrams, In re, 38 C. C. P. A. 

(Pat.) 945 196,211 

Abrams, In re, 56 N. J. 271 269 
Acevedo v. INS, 538 F. 2d 

918 143 

ACF Industries, Inc. v. EEOC, 

439 U. S. 1081 364 

Adamson v. California, 332 

U. S. 46 297 

Addmgton v. Texas, 441 U. S 

418 99, 105, 106, 394 

Adkins v. Bordenkircher, 262 

S. E. 2d 885 31 

Agms v City of Tiburon, 447 

U.S. 255 623,628- 

632, 638, 646, 647, 656 
Agins v. City of Tiburon, 24 

Cal, 3d 266 628,629,631, 

638-643, 647, 650, 660 
Alabama Public Service 

Common v. Southern R. Co., 

341 U. S. 341 320 

Alaska v, K & L Distributors, 

Inc., 318 F 2d 498 316 

Alaska Pacific Fisheries v. 

United States, 248 U. S. 78 556, 
573,576,580,581 
Alexander v. Gardner-Denver 

Co., 415 U, 8.36 88,737,738, 
742-746, 749, 750, 752 
Alice v. Department of Social 

Welfare, 55 Cal. App. 3d 

1039 440 

Allen v. State, 144 Ga. App. 

233 263 

Allenberg Cotton Co. v. Pitt- 
man, 419 U. S. 20 645 
Allied Stores of Ohio, Inc. v. 

Bowers, 358 U. S. 522 682, 

703,704 



Page 

Almota Farmers Elevator & 
Warehouse Co. v. United 
States, 409 U. S. 470 657,659 

Alnoa G. Corp, v. City of 
Houston, 563 F. 2d 769 538 

Alyeska Pipeline Co. v. Wilder- 
ness Society, 421 U. S. 240 378 

Ambush v. Montgomery 
County Government, 22 FEP 
Cases 1101 252 

American Airlines v. CAB, 123 
U. S. App. D. C. 310 609 

American Tobacco Co. v. 
United States, 328 U S. 781 338- 

340,345 

Anderson v. Mount Clemens 
Pottery Co., 328 U. S. 680 780 

Andrus v. Allard, 444 U. S. 51 97, 

649, 656 

Andrus v. Sierra Club, 442 
U. S, 347 104 

Apodaca v. Oregon, 406 U. S. 
404 955 

Aptheker v. Secretary of State, 
378 U. S. 500 427 

Arakas v. Zimmerman, 200 F. 
2d 322 143 

Arizona v. California, 373 U. S. 
546 566 

Arkansas Ed. Assn. v. Board 
of Ed. of Portland School 
Dist., 446 F. 2d 763 432 

Arlington Heights v. Metro- 
politan Housing Dev. Corp., 
429 U. S. 252 470,472,703 

Armstrong v. United States, 
364 U S. 40 656 

Arvonia-Buckingham Slate Co. 
v. United States, 426 F. 2d 
484 164 

Asbury Hospital v. Cass 
County, 326 U. S. 207 386 

Ashbaugh, In re, 36 C. C. P. A. 
(Pat.) 902 196 



LVIII 



Ashcraft v. Tennessee, 322 

U. S. 143 
Ashe v Swenson, 397 U. S 436 



TABLE OF CASES CITED 
Page 



390 
958, 
987 



Ashwander v. TVA, 297 U. S. 

288 407 

Associated Hospital Services v. 

Commissioner, 74 T. C. 213 5, 

10, 11, 15 
Bailey v. Anderson, 326 U. S. 

203 386 

Bailey v. Patterson, 369 U. S. 

31 427 

Baird v. Bellotti, 450 F. Supp. 

997 438 

Baird Bros v. Minneapolis & 

St L R, 181 Iowa 1104 316 
Baldwin v. G. A. F. Seelig, 

Inc., 294 U. S. 511 687 

Ballew v. Georgia, 435 U. S 

223 954-956 

Baltimore Contractors, Inc. v. 

Bodinger, 348 U. S. 176 83, 84 
Bank of Pocahontas v. Ferimer, 

161 Va. 37 105 

Barnes v. State, 244 Ga. 302 468, 

480 
Barnett v. W. T. Grant Co., 

518 F. 2d 543 432 

Baron v. Baltimore, 7 Pet. 243 721 
Barrows v. Jackson, 346 U. S. 

249 429 

Bastidas v. INS, 609 F. 2d 101 140 
Bates v. Little Rock, 361 U S 

516 128 

Baur v. Mathews, 578 F 2d 

228 238 

Bay Ridge Operating Co. v 

Aaron, 334 U S. 446 741 

Beal v. Doe, 432 U. S. 438 482 
Beck v. Washington, 369 U. S. 

^ 541 386 

Beckwith v. United States, 425 

Bell v. Maryland, 378 U S 

-Q n 2( L 389 391 > 395 

Bellotti v. Baird, 428 U S 

r^! 3 !- , 406 ~409, 41 1,413 

Bellotti v. Baird, 443 U S 

622 404, 406-414,419- 

421, 426, 428, 431, 436, 

440, 447, 448, 451, 453 



Page 



Benda v. Fana, 10 Ohio St. 2d 

259 359 

Benson, In re, 58 C. C P A. 

(Pat.) 1134 201 

Benton v. Maryland, 395 U S. 

784 42 

Berg v. Merchant, 15 F. 2d 

990 369 

Bergy, In re, 596 F. 2d 952 190, 

204 
Berman v. Parker, 348 U. S 

26 651 

Bernhardt v. Polygraphic Co., 

350 U S. 198 743 

Bernhart, In re, 57 C. C. P. A. 

(Pat ) 737 200, 201 

Bibb v. Navaho Freight Lines, 
Inc , 359 U. S 520 670, 

671, 690-692, 69S 
Bifulko v. United States, 447 

U. S. 381 342 

Binder v. Johnson, 394 U S 

741 169 

Black v Payne, 438 U S 909 383 
Black-Clawson Co. v. Centrif- 
ugal Engineering & Patents 
Corp., 83 F. 2d 116 196 

Bland v. McHann, 463 F. 2d 

21 538 

Blockburger v. United States, 

284 U. S. 299 337-340, 342, 345 
Blue Chip Stamps v. Manor 

Drug Stores, 421 U. S. 723 1009 
Board of Governors v. Agnew, 

329 U. S 441 56, 57 

Board of Governors v. First 
Lincolnwood Corp., 439 U. S. 
234 57 

Board of Trustees of Keene 
State College v. Sweeney, 439 
U.S. 24 253,254,256 

-Bob Jones Univ. v. Simon, 416 
^ U. S. 725 945 

.Bogus v. American Speech & 

Hearing Assn., 582 F. 2d 277 432 
Bohler v. Callaway, 267 U. S. 
_ 479 534 

Bolongaro, In re, 20 C. C. P. A. 

(Pat.) 845 195 

Bowc v. Gage, 127 Wis. 245 105 
Boynton v. Virginia, 364 U. S. 
454 265, 280 



TABLE OF CASES CITED 



LIX 



Page 
Brancadora v. Federal Nat. 

Mortgage Assn., 344 F. 2d 

933 316 

Brannin v. State, 375 P. 2d 376 290 
Branti v Finkel, 445 U. S. 507 132 
Braunfeld v Brown, 366 TJ. 8. 

599 722, 723, 727 

Braverman v. United States, 

317 U. S. 49 339, 340 

Breed v. Jones, 421 U. S. 519 939, 

943 
Brewer-Elliot Oil & Gas Co 

v. United States, 260 U. S. 

77 576, 577, 581 

Briscoe v. Bell, 432 U. S 404 951 
Brooklyn Savings Bank v. 

O'Neil, 324 U. S 697 740,746,747 
Brown v Board of Ed , 347 

U. S. 152 435, 478, 483 

Brown v. Louisiana, 447 U. S. 

323 955, 956 

Brown v. Nolan, 98 Cal. App. 

3d 445 358 

Brown v. Ohio, 432 U. S. 161 337, 

344, 345 
Bruno v. United States, 308 

U S 287 293, 

296, 300, 302, 304, 308 
Bryant v. Zimmerman, 278 

U. S. 63 386 

Bullock v. Carter, 405 U. S. 

134 124 

Bulova Watch Co. v. United 

States, 365 U S. 753 5 

Burch v. Louisiana, 441 U. S. 

130 954, 955 

Burks v. Lasker, 441 U. S. 471 50 
Burks v. United States, 437 

U. S. 1 40,42-45 

Burnet v. Coronado Oil & Gas 

Co , 285 U. S. 393 952 

Busch v. Jones, 184 U S 598 196 
Buster v Wright, 135 F. 947 566 
Caban v. Mohammed, 441 

U S. 380 478, 490 

Calder v. Bull, 3 Ball. 386 28, 29 
Calif ano v. Aznavonan, 439 

U. S. 170 223,232,240 

Cahfano v. Boles, 443 U. S. 

282 239 

Califano v. Goldfarb, 430 U. S. 

199 471, 490, 496, 498, 682 

Califano v. Jobst, 434 U. S, 47 239 



Page 

Califano v. Torres, 435 U. S. 1 223, 

232 
Califano v. Webster, 430 U. S. 

313 469,471,478,490 

Califano v. Westcott, 443 U. S. 

76 490 

Callanan v. United States, 364 

U. S 587 341,342 

Cannon v. University of 

Chicago, 441 U. S. 677 244, 

341, 772 
Cantwell v. Connecticut, 310 

U. S. 296 721 

Cardinale v. Louisiana, 394 

U. S. 437 277, 386 

Carey v. Population Services 

International, 431 U S. 678 404, 
409, 434, 438, 441, 472, 
473, 483, 491, 493, 497 
Case Co. v. Borak, 377 U. S. 

426 765 

C. F. Mueller Co. v. Commis- 
sioner, 190 F 2d 120 22 
Chapman v. California, 386 

U. S. 18 304 

Charles R. Shepherd, Inc. v. 

Monoghan, 256 F. 2d 882 538 
Charleston Federal Savings & 

Loan Assn. v. Alderson, 324 

U. S. 182 386, 387 

Charlton v. FTC, 177 U. S. 

App. D. C. 418 100 

Chart, Inc. v. United States, 

491 F. Supp. 10 5, 14, 22 

Chatfield, In re, 545 F. 2d 152 203 
Cheers v Secretary of HEW, 

610 F. 2d 463 788 

Chemehuevi Tribe of Indians 

v. FPC, 420 U. S. 395 371 

Chesapeake & Ohio R Co. v. 

United States, 283 U. S. 35 327 
Chicago v. Atchison, T. & S. F. 

R. Co., 357 U. S. 77 318, 320, 324 
Chicago, B. & Q. R. Co. v. 

Chicago, 166 U. S, 226 646 

Chicago, M., St. P. & P. R. 

Co., In re, 611 F. 2d 662 322 
Chicago, R. I. & P. R. Co. v. 

United States, 284 U. S. 80 651 
Chicago Sheraton Corp. v. 

Zaban, 71 111. 2d 85 509 

Chisho-lm Ryder Co. v. Buck, 

65 F. 2d 735 196 



TABLE OF CASES CITED 



Page 

Choctaw Nation v. Oklahoma, 

397 U S 620 551 ; 555, 556, 567- 

569, 57^577, 580, 581 

Christensen, In re, 478 F 2d 

1392 202,203 

Christian & Associates v. 

United States, 160 Ct Cl. 1 784 
Chnstiansburg Garment Co v. 

EEOC,434U S 412 363,366 
Citizens Committee to Keep 
Progressive Hock v. FCC, 
156 U. S. App. D. C. 16 586, 587 
Citizens Committee to Preserve 
Voice of Arts in Atlanta v 
FCC, 141 IT. S App D. C. 
109 586,587,598 

Citizens Committee to Save 
WEFM v. FCC, 165 U. S. 
App. D. C. 185 586, 

587, 590-592, 599 
Citizens to Preserve Overton 
Park v. Volpe, 401 U. S. 
402 ^ 97, 594 

Citv. See name of city. 
CSC v. Letter Carriers, 413 

II. S 548 124 

Clarendon Associates v. Kor- 

zen, 56 111 2d 101 50&-510 

Clark, In re, 185 N. E. 2d 

128 452 

Clark v. Paul Gray, Inc., 306 

U. S. 583 696 

Cleveland Bd. of Ed. v. La 

Fleur, 414 U, S. 632 434 

Clift v. Alabama, 435 U. S. 

909 958 

Coates v. Cincinnati, 402 U. S. 

611 427 

Cobbledick v United States, 

309 U. S. 323 83 

Cochrane v. Deener, 94 U. S. 
^ ? 80 184, 188, 197 

Cohen v. Delaware, L. & W. R. 

Co , 150 Misc. 450 451 

Coit v. Green, 404 U. S 997 945 
Collins Securities Corp. v. SEC 
183 U. S. App. D. C. 301 ' 101, 

Colorado v. United States, 271 
U. S. 153 320,321 



Columbia Broadcasting System, 
Inc. v Democratic National 
Committee, 412 U. S. 94 597, 
598, 604, 607 
Commissioner v. Kowalski, 434 

U. S. 77 5 

Commissioner v South Texas 

Lumber Co., 333 U S. 496 169 
Commissioner v. Southwest 
Exploration Co, 350 U S 
308 167, 172 

Commissioner, Dept. of Transp. 

v. Marshall, 599 F. 2d 588 761 
Commissioner of Internal Rev- 
enue. See Commissioner 
Committee for Public Ed v. 

Nyquist, 413 U. S 756 724-726 
Commonwealth See name of 

Commonwealth 

Community Hospital Services, 
Inc v. United States, 43 
AFTR 2d 79-934 10, 14 

Connecticut v. Menillo, 423 

IT. S. 9 413 

Consolidated Edison Co. v. 

NLRB, 305 U S. 197 99 

Console v. FMC, 383 U. S. 

607 99, 100 

Consumers Product Safety 
Comm'n v. GTE Sylvania, 
Inc., 447 U S. 102 336 

Coolidge v. New Hampshire, 

403 U. S 443 1046 

Cooper, In re, 30 C. C. P. A. 

(Pat.) 946 196 

Coopers & Lybrand v. Livesay, 

437 U. S. 463 82 

Copeland v. Marshall, 205 U. S. 

App. D. C. 390 365 

Corniel-Rodriguez v. INS, 532 

F. 2d 301 791 

Corning v. Burden, 15 How. 

252 182,184,196,206 

Cort v. Ash, 422 U. S. 66 766, 

770, 771 
County Court of Ulster v 

Allen, 442 U. S. 140 ' 954 

Cousins v. Wiffoda, 419 U S 

477 121, 128-128, 128, 129, 138 
Cover v. Chicago Eye Shield 

Co., 136 F. 2d 374 361 

Cowgill v, California, 396 
U. S. 371 386 



TABLE OF CASES CITED 



LXI 



Page 
Cox v. Louisiana, 379 U. S. 

536 427 

Cox Broadcasting Corp. v. 

Cohn, 420 U S. 469 385, 

387, 634-636, 645 

Craig v. Boren, 429 U S. 190 459, 

460, 468, 469, 478, 483, 

488-490, 492, 494, 498 

Crist v. Bretz, 437 U. S 28 42 

Crook v. Crook, 80 Anz. 275 450 

Crowell v Randell, 10 Pet. 368 386 

Crow Nation v. United States, 

81 Ct. Cl 238 571, 575 

Crow Tribe v United States, 

151 Ct. CL 281 558, 

571, 572, 574, 575, 577 
Culombe v. Connecticut, 367 

U. S. 568 1019 

Cummings v. Missouri, 4 Wall. 

277 28, 31, 32 

Cuyler v Sullivan, 446 U. S. 

335 271,272,280 

Dandndge v. Williams, 397 

U S. 471 230,234,243,481 

Danforth v. United States, 308 

U. S 271 658 

Dann v. Johnston, 425 U. S. 

219 202, 217 

Darwin v. Connecticut, 391 

U. S. 346 1017 

D. A. Schulte, Inc. v. Gangi, 

328 U. S. 108 740 

Davis v Newton Coal Co., 267 

U. S. 292 653 

De Canas v. Bica, 424 U. S. 

351 317 

De Castelet, In re, 562 F. 2d 

1236 203 

Deepsouth Packing Co. v. 

Laitram Corp., 406 U. S. 518 193 
De Hart v. Allen, 26 Cal. 2d 

829 643 

Dellums v. Powell, 184 U. S. 

App. D. C. 275 432 

Deutsch, In re, 553 F. 2d 689 203 
Diamond v. Chakrabarty, 447 

U. S. 303 181, 182, 185 

Diane, In re, 318 A. 2d 629 438 
Dillon v. Montana, 634 F. 2d 

463 538 

Dobbert v. Florida, 432 U. S. 

282 29, 32, 33, 37 



Page 
Dodge v. Board of Ed., 302 

U. S. 74 30 

Doe v. Bolton, 410 U. S. 179 404, 
405, 427, 429, 434, 435, 
441, 444 
Donahue v California Justice 

Court, 15 Cal. App. 3d 557 563 
Don Lee, Inc. v. Walker, 61 F. 

2d 58 195 

Donnelly v. United States, 228 

U. S. 243 575, 581 

Dorchy v. Kansas, 264 U. S. 

286 390 

Douglas v. Commissioner, 322 

U. S. 275 169 

Dowd v Sims, 229 Ind. 54 28 

Draper v United States, 164 

U. S. 240 559 

Dual v. Cleland, 79 F. R. D. 

696 361, 374 

Duke Power Co. v Carolina 

Environmental Study Group, 

438 U. S 59 429 

Dunn v. Blumstein, 405 U. S. 

330 115 

Du Pont de Nemours & Co. v. 

Train, 430 U S. 112 609 

Durant v United States, 410 

F. 2d 689 31, 32 

East v. Romine, Inc., 518 F. 

2d 332 256 

Edelman v. Jordan, 415 TJ. S. 

651 149-153, 155 

Educational Films Corp. v. 

Ward, 282 U. S. 379 524, 532, 540 
Eibel Process Co. v. Minnesota 

& Ontario Paper Co., 261 

U. S. 45 188 

Eichelberger v. Commissioner 

of Internal Revenue, 88 F. 

2d 874 791 

E. I. du Pont de Nemours & 

Co. v. Train, 430 U. S. 112 609 
Eisen v. Carlisle & Jacquelin, 

417 U. S. 156 432 

Eisenstadt v. Baird, 405 U. S. 

438 434, 491 

Eldndge v. City of Palo Alto, 

57 Cal. App. 3d 613 642 

Elgin Coal Co, v. Louisville & 

NashviUe R. Co., 277 F. 

Supp. 247 325 



LXII 



TABLE OF CASES CITED 



Page 

Emporium Capwell Co. v. 
Western Addition Community 
Org., 420 U. S. 50 735 

Engle v. Vitale, 370 U. S 421 724, 

725 
EPA v. National Crushed Stone 

Assn., 449 U. S. 64 512 

EEOC v. Associated Dry Goods 

Corp , 449 U. S 590 258 

Erie R. Co. v. Tompkins, 304 

U. S. 64 153, 523 

Ernst, In re, 21 C. C. P. A. 

(Pat.) 1235 196 

Ernst & Ernst v. Hochfelder, 

425 U S 185 1009 

Euclid v. Ambler Realty Co., 

272 U. S. 365 656 

Everson v. Board of Ed, 330 

U. S. 1 716,725 

Expanded Metal Co. v. Brad- 
ford, 214 U. S 366 196 
Ex parte. See name of party. 
FCC v Midwest Video Corp., 

440 U S. 689 596, 600, 608 

FCC v. National Citizens Com- 
mittee for Broadcasting, 436 
U. S. 775 594-596, 608 

FCC v. Pacifioa Foundation, 

428 U. S. 726 598 

FCC v. Pottsville Broadcasting 

Co, 309 U. S. 134 593 

FCC v. Sanders Brothers 
Radio Station, 309 IT. S. 
470 588, 589 

FCC v. WOKO, Inc., 329 U. S. 

233 596 

Federal Crop Ins. Corp. v. 

Merrill, 332 U. S. 380 788, 789 
FDIC v. Fruit Growers Service 

Co., 3 F. R D. 131 362 

FPC v. Texaco, Inc., 377 U. S. 

33 609 

FPC v. Transcontinental Gas 

Pipe Line Corp , 365 U. S. 1 595 
Fisher v. District Court, 424 

U. S. 382 566 

Fitzpatrick v. Bitzer, 427 U. S. 

445 152 

Five Minor Children, In re, 

407 A. 2d 198 383, 396 

Flamtn v. Ribicoff, 203 F. Supp. 
507 788 



Page 

Flemming v. Nestor, 363 U. S. 

603 244 

Fletcher v. Peck, 6 Cranch 87 29, 

565 

Flook, In re, 559 F. 2d 21 203 

Flores v. State, 69 Wis. 2d 509 468 
Florida Lime & Avocado 

Growers, Inc. v Paul, 373 

U. S. 132 317 

Ford Motor Co v. Huffman, 

345 U. S. 330 742 

Fort Berthold Indians v. United 

States, 71 Ct. Cl. 308 571, 575 
Foster, In re, 58 C. C. P. A. 

(Pat.) 1001 201 

Foti v. INS, 375 U. S. 217 140 
Francis v. Davidson, 340 F. 

Supp. 351 433 

Franks v. Delaware, 438 U. S 

154 954 

Fred F. French Investing Co. 

v. Citv of New York, 39 

N. Y. 2d 587 641, 649 

Freeman, In re, 573 F. 2d 1237 203 
Frontiero v. Richardson, 411 

U. S. 677 229, 461, 476, 478 

Frv Bros. Corp. v. HUD, 614 

F. 2d 732 762 

F. S. Royster Guano Co, v. 

Virginia, 253 U. S. 412 243, 245 
Fullilove v. Klutznick, 448 U. S. 

448 478 

Fulman v. United States, 434 

U. S. 528 169 

Funk Bros. Seed Co. v. Kalo 

Inoculant Co., 333 U. S. 127 185, 

187 
Furman v. Georgia, 408 U. S. 

738 1015, 1019 

Furnco Construction Corp. v. 

Waters, 438 U. S. 567 254, 259 
Furtado v. Bishop, 635 F. 2d 

915 365 

G., In re, 498 S. W. 2d 786 468 
Gagnon v. Scarpelli, 411 U. S. 

778 271 

Gallaher & Speck, Inc. v. Ford 

Motor Co., 226 F. 2d 728 777 
Gardner v. Westinghouse 

Broadcasting Co., 437 U S 
478 85,86 

Garrett v. Bamford, 583 F. 2d 
63 534,538,540 



TABLE OF CASES CITED 



LXHI 



Page 

Gartner, In re, 42 C. C P. A. 
(Pat) 1022 196 

Gary-Northwest Indiana 
Women's Services v. Bowen, 
421 F Supp. 734 432 

Gateway Coal Co. v. Mine 
Workers, 414 U. S. 368 736 

Gay v. Waiters' and Dairy 
Lunchmen's Union, Local 
No. 30, 86 F. R. D. 500 361, 374 

Geckler v. Review Bd. of Ind. 
Employment Security Divi- 
sion, 244 Ind. 473 724 

Gelnovatch, In re, 595 F 2d 
32 204 

General Electric Co. v. Gilbert, 

429 U, S. 125 498 
General Electric Co. v. Marvel 

Rare Metals Co, 287 U. S 

430 83, 86 
General Portland Cement Co. 

v. United States, 628 F. 2d 

321 164, 166-168, 173 

Georgia R. Co, v. Redwme, 342 

U S. 299 517, 518, 537, 538 

Gesicki v. Oswald, 336 F. Supp. 

371 432 

Ghiron, In re, 58 C. C. P. A. 

(Pat.) 1207 201 

Gibbons v. Ogden, 9 Wheat. 1 317 
Giles v. Maryland, 386 U. S. 

66 390 

Ginsberg v. New York, 390 

U. S. 629 410, 449, 473 

Gladstone, Realtors v. Village 

of Bellwood, 441 U. S. 91 428 
Gladys R., In re, 1 Cal. 3d 855 477 
G L. Christian <fe Associates v. 

United States, 160 Ct. Cl. 1 784 
Glynn v. Capeletti Bros., 621 

F. 2d 1309 769, 772 

Godchaux Co. v. Estopinal, 251 

U. S. 179 385 

Goldberg v. Weinberger, 546 F. 

2d 477 788 

Goldblatt v. Town of Hemp- 
stead, 369 U. S. 590 648, 649 
Golden Isles Convalescent Cen- 
ter v. Calif ano, 442 F. Supp. 

201 148 

Gold Strike Stamp Co. v. 

Christensen, 436 F. 2d 791 432 



Page 
Goldsworthy v. Hannifin, 86 

Nev. 252 28,31 

Golsen v. Commissioner, 54 

T. C. 742 164 

Gooding v. Wilson, 405 U. S. 

518 427 

Gore v. United States, 357 

U. S. 386 338, 343, 345 

Gospel Army v. Los Angeles, 

331 U. S. 543 643 

Gottschalk v. Benson, 409 U. S. 

63 180, 184, 185, 

187-189, 191, 195, 201- 
205, 211, 213, 215, 217 
Gouled v. United States, 225 

U. S. 298 1046, 1047, 1049 

Gravitt v. Southwestern Bell 

Telephone Co., 430 U. S. 

723 951 

Grays Harbor Co. v. Coats- 

Fordney Co., 243 U. S. 251 632, 

646 
Great A&P Tea Co. v. Cottrell, 

424 U. S 366 699,693 

Great Lakes Dredge & Dock 

Co. v. Huffman, 319 U. S. 

293 513, 522 

525, 526, 530, 531, 536 
Great Northern R. Co. v. Mer- 
chants Elevator Co., 259 

U. S. 285 330 

Green, In re, 134 U. S. 377 125 
Green v. Commonwealth, 448 

S. W. 2d339 295,303 

Green v. Connally, 330 F. 

Supp. 1150 945,948 

Green v. State, 238 So. 2d 296 32 
Green v. State, 270 So. 2d 695 468 
Greene v. Massey, 437 U. S. 

19 42, 43 

Greenfield v. Scafati, 277 F. 

Supp. 644 32,34,37 

Greenwald v. Maryland, 363 

U- S. 721 383 

Gregg v. Georgia, 428 U. S. 

153 936, 989, 1020, 1025, 1035 

Griffin v. California, 380 U. S. 

609 295,297, 

298, 300, 301, 305-310 
Griffin v. School Bd. of Prince 

Edward County, 377 U. S. 

218 944 



LXIV 



TABLE OF CASES CITED 



Page 
Griggs v. Allegheny County, 

369 U. S 84 655 

Griswold v Connecticut, 381 

U. S 479 429, 434, 437, 442, 483 
Group Assisting Sewer Pro- 

posal-Ansonia v. City of 

Ansoma, 448 F. Supp. 45 542 
Groves, Ex parte, 571 S, W. 2d 

888 468 

Gulf, C & S. F. R. Co. v. 

Dennis, 224 U. S. 503 390-392 
Gulf, M. & R. Co. v. 

Webster County, 194 Miss. 

660 524 

H. v. Jones, 425 F. Supp 873 436 
Hall v. McKenzie, 537 F. 2d 

1232 467 

Hall v. State, 365 So. 2d 1249 467 
Halliburton Oil Well Cement- 
ing Co v. Walker, 146 F. 2d 

817 196,211 

Hammon v Northern Pacific 

R. Co , 23 Ore. 157 358 

Hanf v State, 560 P 2d 207 290 
Hankerson v. North Carolina, 

432 U. S. 233 955, 956 

Hanover Bank v. Commissioner, 

369 U. S. 672 948 

Hanrahan v. Hampton, 446 

U. S. 754 1023 

Harris v. McRae, 448 U S. 

297 244, 406, 

413, 419, 427, 440, 482 
Harris v. United States, 359 

U. S. 19 345 

Harris v. Wainwright, 376 So. 

2d 855 28, 29 

Harrison v. NAACP, 360 U. S. 

167 407 

Harry F. Ortlip Co. of Pa. v. 

Alvey Ferguson Co., 223 F. 

Supp. 893 777 

Hartford Communications Com- 
mittee v. FCC, 151 U. S. 

App. D. C. 354 586 

Helmsley v. City of Detroit. 

320 F. 2d 476 538 

Helvering v. Clifford, 309 U. S. 

331 5 

Helvering v. Mountain Pro- 
ducers Corp., 303 U. S. 376 172 
Helvering v. Wilshire Oil Co., 

308 U. S. 90 169 



Hendrick v. Maryland, 235 

U S. 610 670,690 

Herberle v P R. O Liquidat- 
ing Co., 186 So. 2d 280 32 
Herbert v. Lando, 441 U. S. 

153 364 

Heritage, In re, 32 C. C P. A. 

(Pat.) 1170 195,196,211 

Herrmg-Hall-Marvin Safe Co. 

v. Balhet, 44 Nev. 94 358 

Hewitt-Robins Inc. v. Eastern 

Freight-Ways, Inc., 371 

U. S. 84 316, 322 

Hicks v. Miranda, 422 U. S. 

332 392 

Higginbotha^i v. State, 88 Fla. 

26 32 

Hill v. California, 401 U. S. 

797 277 

Hillsborough v. Cromwell, 326 

U. S. 620 513, 517, 525, 535 

Hmes v. Anchor Motor Freight 

Lines, Inc., 424 U. S. 554 736 
Hines v. Davidowitz, 312 U. S. 

52 317 

H. L. v. Matheson, 450 U. S. 

398 482 

Hoffa v. United States, 385 

IT. S. 293 1047-1049 

Holden v. Minnesota, 137 U. S. 

483 32 

Holloway v. Arkansas, 435 

U. S. 475 271 

Holtman Co. v. Sweeney, 136 

Ky. 773 358 

Home Ins. Co. v. Kirkevold, 

160 F. 2d 938 361 

Honeyman v. Hanan, 300 U. S. 

14 390 

Hood & Sons, Inc. v. Du Mond, 

336 U. S. 525 
Hopkins v. Southern California 

Telephone Co., 275 U. S. 

393 524, 532, 540 

Hopt v. Utah, 110 U. S. 574 29, 30 
Horn v. O'Cheskey, 378 F. 

Supp. 1280 534 

Horvath, In re, 41 C. C. P. A. 

(Pat.) 844 196 

Hospital Bureau of Standards 

& Supplies v. United States, 

141 Ct. Cl. 91 5, 10-12, 20 



TABLE OF CASES CITED 



Page 

Hospital Central Services Assn 
v. United States, 623 F. 2d 
611 5, 15 

Hospital Central Services Assn 
v United States, 40 AFTR 
2d 77-5646 10, 14 

H. P. Hood & Sons, Inc. v. 
Du Mond, 336 U. S. 525 669 

Hughes v. Alexandria Scrap 
Corp., 426 U. S. 794 682,683 

Hughes v. Washington, 389 
U. S. 290 653 

Humphrey v. Moore, 375 U S. 
335 742 

Hunt v. Washington Apple Ad- 
vertising Comm'n, 432 U. S. 
333 669,670 

Hunter Co v. McHugh, 320 
U. S. 222 386 

Huron Portland Cement Co. v. 
Detroit, 362 U. S. 440 689 

lannelh v. United States, 420 
U. S 770 337 

Illinois Central R Co. v. Nor- 
fork & Western R. Co., 385 
U. S. 57 325 

INS v. Hibi, 414 U. S. 5 788,792 

In re See name of party. 

International House of Pan- 
cakes Franchise Litigation, 
In re, 487 F. 2d 303 83 

International Telephone & 
Telegraph Corp. v. Electrical 
Workers, 419 U. S. 428 96 

ICC v. Chicago & N. W. 
Transp. Co., 533 F. 2d 1025 314, 
319, 330 

ICC v. Chicago, R, I. & P. R. 
Co., 501 F. 2d 908 314 

ICC v. Maine Central R. Co,, 
505 F. 2d 590 319 

ICC v. Railway Labor Execu- 
tives Assn., 315 U. S. 373 325 

Investigation Before April 1975 
Grand Jury, In re, 174 U. S. 
App. D. C. 268 269 

Investment Company Institute 
v. Camp, 401 U. S. 617 55, 
65-68,76 

Jackson, In re, 21 Ohio St. 2d 
215 940,942 

Jackson v, State, 85 Nev, 203 290 



Page 
Jackson v. U. S. Steel Corp., 

624 F. 2d 436 252 

Jacobs v. United States, 290 

U. S. 13 654,655 

Jaehne v. New York, 128 U. S 

189 29 

James v. Strange, 407 U. S 

128 243 

J. D. G., In re, 498 S W. 2d 

786 468 

Jefferson v. Hackney, 406 U. S. 

535 234 

Jewell Ridge Coal Corp. v. 

Mine Workers, 325 U. S. 161 741 
J. I. Case Co. v. Borak, 377 

U. S. 426 765 

Johnson, In re, 589 F. 2d 1070 205 
Johnson v. Georgia Highway 

Express, Inc., 488 F. 2d 714 365 
Johnson v. Louisiana, 406 U. S. 

356 955 

Johnson v. Robison, 415 U. S. 

361 243,682,683 

Johnson v. United States, 333 

U. S. 10 1046 

Johnston, In re, 502 F. 2d 765 202 
Jones v. Florida, 419 U. S. 

1081 385 

Jones v. Meehan, 175 U. S. 1 569 
Jungersen v. Ostby & Barton 

Co., 335 U. S. 560 687 

Jurek v. Estelle, 430 U. S. 

951 1015 

Jurek v. State, 522 S. W. 2d 

934 1015 

Jurek v. Texas, 428 U. S. 262 1015, 

1020 

Kahn v. Shevin, 416 U. S. 351 469, 
473,481,483 
Kaiser Aetna v. United States, 

444 U. S. 164 648,652 

Kake v. Egan, 369 U. S. 60 559 
Kantrowitz v. Weinberger, 388 

F. Supp. 1127 237 

Kimball Laundry Co. v. United 

States, 338 U. S, 1 657, 659 

Kinney v. State, 36 Wyo. 466 290 
Kirchberg v. Feenstra, 450 

U. S. 455 490 

Kleppe v. New Mexico, 426 

U.S. 529 407,414 

Knouse v. Nimocks, 8 Cal. 2d 

482 628,644 



LXVI 



TABLE OF CASES CITED 



Page 
Korzen v. Fulton Market Cold 

Storage Co., 62 111. 2d 443 508 
Kremens v Bartley, 431 U. S 

119 43 2 

Kring v. Missouri, 107 TJ. S. 

221 28,29 

Kunz v. New York, 340 U. S. 

290 428 

Kusper v. Pontikes, 414 II. S. 

51 121, 122, 136, 137 

L. v. Matheson, 450 U. S. 398 482 
Lacey v. Laird, 166 Ohio St. 

12 451 

Ladner v. United States, 358 

TT. S. 169 342 

La Follette v. Democratic Party, 

93 Wis. 2d 473 127, 130 

Lakefront Realty Corp. v. 

Lorenz, 19 IU. 2d 415 510, 524 
Lakeside v. Oregon, 435 U. S. 

333 295, 298-303, 307, 308 

Lakewood Broadcasting Serv- 
ice, Inc. v. FCC, 156 U. S. 

App. D. C. 9 586 

LaSalle National Bank v. 

County of Cook, 57 IU. 2d 

318 509, 514 

Lee y Inc. v. Walker, 61 F. 2d 

58 195 

Legion v. Richardson, 354 F. 

Supp. 456 237,241,246 

Leimbach v. Califano, 596 F. 

2d 300 788 

Lemon v. Kurtzman, 403 U. S. 

602 724-726 

Le Roy v. Tatham, 14 How. 

156 185-188 

Lewis v. United States, 385 

U. S 206 1047-1049 

Lieberman v. Gant, 630 F. 2d 

60 252, 259 

Lindsey v. Washington, 301 

U, S. 397 28, 29, 32, 33, 36, 37 
Lindsley v. Natural Carbonic 

Gas Co., 220 U. S. 61 243 

Lindy Bros. Builders, Inc. v. 

American Radiator & Stand- 
ard Sanitary Corp., 540 F 

2dl02 F ' 365 

Live Oak Water Users' Assn. 

v. Railroad Comm'n, 269 

U. S. 354 386 



Page 
Locomotive Firemen v. Chicago, 

R. I. & P. R. Co., 393 U. S. 

129 678, 680, 687, 691, 692 

Loeb v. Textron, Inc., 600 F. 

2d 1003 252, 258, 259 

Louisville Gas & Electric Co. 

v. Coleman, 277 U. S. 32 239, 698 
Louisville & Nashville R. Co. v. 

Higdon, 234 U. S. 592 387 

Louisville & Nashville R. Co. 

v. Public Service Comm'n, 

631 F. 2d 426 538 

Loving v. Virginia, 388 U. S. 1 434 
L. R. v. Hansen, Civ. No. 

C-80-0078J (Utah) 406, 

426, 428, 438, 451 
Luna-Benalcazar v. INS, 414 

F. 2d 254 143 

Lundberg, In re, 39 C. C. P. A. 

(Pat.) 971 196 

Lyman v. Ladd, 120 U. S. App. 

D. C 388 195 

M. v. Sonoma County Superior 

Court, 450 U. S. 470 445, 

463,464,703 
Mackay Radio & Telegraph 

Co v. Radio Corp. of Amer- 
ica, 306 U. S. 86 188 
Mackey v. United States, 401 

U. S. 667 956 

Maguire v. Federal Crop Ins. 

Corp., 9 F. R. D. 240 361 

Maher v. Gagne, 448 U. S. 

122 363, 365, 376 

Maher v. Roe, 432 U. S. 464 244, 
412, 413, 419, 440, 482 
Maine v. Thiboutot, 448 U. S. 

1 236 

Malat v. Riddell, 383 U. S. 569 948 
Malloy v. Hogan, 378 U. S. 1 297, 

305,309 
Malloy v. South Carolina, 237 

U. S. 180 29,33 

Marchioro v. Chaney, 442 U. S. 

191 129 

Margaret S. v. Edwards, 488 F. 

Supp. 181 438 

Margulis v. Solomon & Berck 

Co., 223 App. Div. 634 359 

Market Street R. Co. v. Rail- 
road Comm'n, 324 U. S. 548 646 
Marshall v. Barlow's, Inc., 436 

U. S. 307 1049 



TABLE OF CASES CITED 



LXVH 



Page 
Martin v, Thompson Tractor 

Co., 486 F. 2d 510 432 

Martin v. Waddell, 16 Pet. 367 551 

552, 554 
Martino v. Michigan Window 

Cleaning Co., 327 U. S. 173 741 
Maryland v. Wirtz, 392 U. S. 

183 153 

Mason v. Belieu, 177 IT. S. 

App. D. C. 68 361 

Massachusetts Bd. of Retire- 
ment v. Murgia, 427 II. S. 
307 234, 682, 704 

Mathews v De Castro, 429 

U.S. 181 230,238,243 

Mathews v. Lucas, 427 IT. S. 

495 234 

Matthews v. Rodgers, 284 U. S. 

521 523, 524, 532, 541 

Maurer v. Hamilton, 309 U. S. 

598 694 

May v. Anderson, 345 U. S. 

528 437 

McClanahan v. Arizona Tax 

Comm'n, 411 U. S. 164 564 

McCollum v. Board of Ed., 333 

U. S. 203 724, 726 

McCrary v. Runyon, 427 U. S. 

160 949 

McCrary v. Runyon, 363 F. 

Supp. 1200 946 

McCurdy, In re, 22 C, C. P. A. 

(Pat.) 1140 196 

McDaniel v. University of 

Chicago, 512 F. 2d 583 765-770 
McDaniel v. University of 
Chicago, 548 F. 2d 689 765-767, 

769, 780 

McDonnell Douglas Corp. v. 
Green, 411 U. S. 792 252-254, 

^r-rx , 256,258-260 

McDonough Power Equipment 

Co. v. Superior Court. 8 Cal. 

3d 527 643 

McGinnis v. Royster, 410 U. S. 

263 244,470,683,703 

McGowan v. Maryland, 366 

U. S. 420 244 

Mcllroy, In re, 58 C. C. P. A. 

(Pat.) 1249 201 

McKinney v. Alabama, 424 

U.S. 669 275,972 



Page 

McKinney v. Missouri-Kansas- 
Texas R. Co., 357 U. S. 265 738 



McLaughhn 
U. S. 184 



v. Florida, 379 



478 



McNally v. Rowan, 101 App. 

Div. 342 359 

McPherson v. Blacker, 146 

US. 1 125 

Mead, In re, 29 C. C. P A 

(Pat.) 1001 ' 196 

Medley, In re, 134 U. S. 160 28 

, /rj , 32,34,36,37 

Medora v. Colautti, 602 F. 2d 
1149 245 

Meloon v. Helgemoe, 564 F 2d 

.-802 468,475,490 

Memorial Hospital v. Maricopa 
County, 415 U. S 250 452 

Mescalero Apache Tribe v. 

Jones, 411 U. S. 145 564 

Metropolitan Detroit Area Hos- 
pital Services, Inc. v. United 
States, 634 F. 2d 330 5, 13 

Metropolitan Detroit Area Hos- 
pital Services, Inc. v. United 
States, 445 F. Supp. 857 14, 15, 19 

Meyer v. Nebraska, 262 U. S. 
390 447 

Michael M. v. Sonoma County 
Superior Court, 450 U. S. 

n^JS 445,463,464,703 

Middleton, In re, 35 C. C. P. A 

(Pat.) 1166 196 

Midland Valley R. Co. v. 

Barkley, 276 U. S. 482 325, 330 
MiWautsch v. Dominick, 452 

P. 2d 438 358 

Milton v. Wainwright, 407 U. S. 

371 1019 

Minersville School Dist. v. 

Gobitis, 310 U. S. 586 153 

Minnesota v. Clover Leaf 

Creamery Co., 449 U. S. 456 680- 

683 
Minnesota v. Hitchcock, 185 

U. S 373 ^ 552 

Miranda v. Arizona, 384 U. S. 

8 1016 

Missouri ex rel. Wabash R. Co. 

v. Public Service Comm'n, 

273 U. S. 126 390,391 

Missouri Pacific R. Co, v. 

Stroud, 267 U. S. 404 318, 325 



LXVUI 



TABLE OF CASES CITED 



Pago 
Mr. Hanger, Inc. v Cut Rate 

Plastic Hangers, Inc., 63 

F. R. D. 607 361,374 

Mitchell v. King Packing Co., 

350 U. S. 260 739 

Mitchell v. Oregon Frozen 

Foods Co , 361 U. S. 231 386 
Mobile v Bolden, 446 U. S 55 472 
Moe v Sahsh & Kootenai 

Tribes, 425 U. S. 463 525, 

530, 531, 536 
Monell v. New York City 

Dept. of Social Services, 436 

U. S 658 152, 153 

Monongahela Navigation Co. v. 

United States, 148 U. S. 312 656 
Monroe v. Pape, 365 U. S. 

167 152 

Montana v. Kennedy, 366 U. S. 

308 788-790 

Montana Catholic Missions v. 

Missoula County, 200 U. S. 

118 566 

Moore v. East Cleveland, 431 

U S. 494 419,437,447 

Moore v. Illinois, 408 U. S. 

786 277 

Moore v. MeKenzie, 236 S. E. 

2d 342 468 

Moore v. Ogilvie, 394 U. S. 

814 115 

Morris v. Duby, 274 U. S. 135 690 
Morris v. Hitchcock, 194 U. S. 

384 565 

Morris v. Schoonfield, 399 U. S. 

508 287 

Morrissey v. Brewer, 408 U. S. 

471 271 

Morris-Turner Live Stock Co. 

v. Director General of Rail- 
roads, 266 F. 600 358 
Morton v. Ruiz, 415 U. S. 199 795 
Mothers & Childrens Rights 

Organization v. Sterrett, No. 

70 F. 138 (ND Ind.) 151 

Motor Club of Iowa v. Depart- 
ment of Transportation, 251 

N. W. 2d 510 666 

Mueller Co. v. Commissioner. 

190 F. 2d 120 22 

Mullane v. Central Hanover 

Bank & Trust Co., 339 U. S. 

306 56 



Pago 

Murphy v. Commonwealth, 172 

Mass. 264 30, 31, 34 

Murphy v. Waterfront Common, 

378 U. S. 52 298, 300 

Murray v. Wilson Distilling 

Co., 213 U. S. 151 150 

Musgrave, In re, 57 C. C. P. A. 

(Pat.) 1352 200-202 

Nabors v. Texas Co., 32 F. 

Supp. 91 362 

Nader v. Schaffer, 417 F. Supp. 

837 136 

Nairn v. Nairn, 350 U. S. 891 ; 

350 U. S. 985; 197 Va. 734 387 
Naquin, In re, 55 C. C. P. A. 

(Pat.) 1428 195 

NAACP v. Alabama ex rel. 

Patterson, 357 U. S. 449 121, 

131,429 
NAACP v. Button, 371 U. S. 

415 121, 441 

National Broadcasting Co. v. 

United States, 319 U. S. 190 586, 
594, 601, 603, 608-610 
NLRB v. Allis-Chalmers Mfg. 

Co., 388 U. S. 175 735 

NLRB v. Columbian Enameling 

& Stamping Co., 306 U. S. 

292 99 

National League of Cities v. 

Usery, 426 U. S. 833 153 

National Muffler Dealers Assn. 

v. United States, 440 U. S. 

472 169 

National Railroad Passenger 

Corp. v. National Assn. of 

Railroad Passengers, 414 

U. S. 453 773 

Navedo v. Preisser, 630 F. 2d 

636 468, 474, 490 

NCNB Corp. v. Board of Gov- 
ernors, 599 F. 2d 609 57 
Newman v. Piggie Park Enter- 
prises, Inc., 390 U. S. 400 363, 

366 

Newton v. Allis, 16 Wis. 197 358 
New York ex rel. Bryant v. 

Zimmerman, 278 U. S. 63 386 
New York ex rel. Whitman v. 

Wilson, 318 U. S. 688 390 

Nichols, In re, 36 C. C. P. A. 

(Pat.) 759 196 



TABLE OF CASES CITED 



LXIX 



Page 

Nickola v. Peterson, 580 F. 2d 
898 190 

Noll, In re, 545 F. 2d 141 202, 203 

Norman v McKee, 431 F. 2d 
769 82 

North Carolina v. Pearce, 395 
U. S. 711 343 

North Carolina Granite Corp 
v. Commissioner, 56 T. C. 
1281 162 

North Dakota Pharmacy Bd. 
v. Snyder's Drug Stores, Inc., 
414 II. S. 156 633, 646 

Northeast Airlines, Inc. v Min- 
nesota, 322 II. S. 292 690 

Northern California Central 
Services, Inc. v. United 
States, 219 Ct. Cl. 60 5, 8, 14, 19 

North Georgia Bldg. & Constr. 
Trades Council v. Gold- 
schmidt, 621 F. 2d 697 761 

North Georgia Bldg. & C. T. 
C. v. U. S. Dept. of Transp., 
399 F. Supp. 58 761 

Nutt v. Ellerbe, 56 F. 2d 1058 540 

O'Bannon v. Town Court Nurs- 
ing Center, 447 U. S. 773 232 

Ogden v. Blackledge, 2 Cranch 
272 29 

O'Hair v. Andrus, 198 U. S. 
App. D. C. 198 720 

Oliphant v. Suquamish Indian 
Tribe, 435 U. S. 191 562, 563, 565 

Olmstead v. United States, 277 
U. S. 438 434 

Olson v State, 588 P. 2d 1018 468 

Olson v. United States, 292 
U. S. 246 659 

Oregon v. Mitchell, 400 U. S. 
112 125 

O'Reilly v. Morse, 15 How. 62 188, 

204 

Orr v. Orr, 440 U. S. 268 460, 

468, 472, 476, 490 

Orthp Co. of Pa. v. Alvey Fer- 
guson Co., 223 F. Supp. 893 777 

O'Shea v. Littleton, 414 U. S. 
448 427 

Oum y. INS, 613 F. 2d 51 143 

Overnight Motor Transporta- 
tion Co. v. Missel, 316 U. S. 
572 739,740 



Page 
Owen v. City of Independence, 

445 U. S 622 661 

P., In re, 318 A. 2d 286 468 

Packer v. Bird, 137 U. S. 661 551, 

552, 554 
Pagel v. MacLean, 283 U S. 

266 390,392 

Palmer v. Massachusetts, 308 

U. S. 79 320 

Palmer v. Thompson, 403 U. S. 

217 469, 472 

Parham v. Hughes, 441 U. S. 

347 469, 478 

Parham v. J. R., 442 U. S. 

584 410, 423, 424, 450 

Paris Adult Theatre I v. Slaton, 

413 U. S. 49 275, 972 

Parker, In re, 23 C. C. P. A. 

(Pat.) 721 196 

Parker v. Finch, 327 F. Supp. 

193 788 

Parker v. Flook, 437 U. S. 584 185- 

187, 191, 192, 194, 199, 

203-205, 209, 211-217 

Patterson v. Alabama, 294 

U. S. 600 389-391, 396 

Payton v. New York, 445 U. S. 

573 1046 

Pearson v. Dodd, 429 U. S. 

396 385 

Pelaez v. INS, 513 F. 2d 303 142 
Penn Central Transp. Co. v. 

New York City, 438 U. S. 

104 641,648,649 

Pennsylvania Coal Co. v. 

Mahon, 260 U. S. 393 649-652 
Pennsylvania R. Co. v. Clark 

Bros. Coal Mining Co., 238 

U. S. 456 327 

Pennsylvania R. Co. v. Illinois 

Brick Co., 297 U. S. 447 386 
Pennsylvania R. Co. v. Puritan 

Coal Mining Co., 237 U. S. 

121 328-331 

People v. Dontanville, 10 CaL 

App. 3d 783 477 

People v. Haywood, 131 CaL 

App. 2d 259 , 477 

People v. Hernandez, 61 Cal. 

2d 529 488,495 

People v. Lewis, 113 Cal. App. 

2d 468 477 



LXX 



TABLE OF CASES CITED 



Page 

People v. Mackey, 46 Cal App. 

3d 755 468 

People v. Noga, 196 Colo. 478 44 
People v. Ramos, 33 App. Div. 

2d 344 44 

People v. Salinas, 191 Colo. 

171 468 

People v. Verdegreen, 106 Cal 

211 495 

People v. Whidden, 51 1ST. Y. 2d 

457 468 

People ex rel. Korzen v. Fulton 

Market Cold Storage Co , 62 

III 2d443 508 

Perez v. Campbell, 402 U S. 

637 317 

Perez v. Ledesma, 401 U S. 

82 520, 522, 527 

Permian Basin Area Rate 

Cases, 390 U S. 747 609 

Perrm v. United States, 444 

U. S. 37 182 

Personnel Administrator of 

Mass. v. Feeney, 442 U. S. 

256 234, 461 

Petrosky v. Flanagan, 38 Minn. 

26 358 

Philadelphia v New Jersey, 437 

U. S. 617 686, 689 

Phillips, In re, 608 F 2d 879 205 
Piccinllo v. New York, 400 

U. S. 548 390 

Pierce v. Society of Sisters, 268 

U.S. 510 410,437,447 

Pike v. Bruce Church, Inc., 397 

U. S. 137 671,679-681,690 

Pinkerton v. United States, 328 

U. S. 640 340 

Pirillo v. Takiff, 462 Pa 511 269 
Planned Parenthood of Central 

Mo. v. Danforth, 428 U. S. 

52 400, 404, 408- 

410, 413, 414, 419-425, 

427, 429, 435-437, 440- 

442, 446, 448, 453, 473 

Plessy v. Ferguson, 163 U. S. 

537 152, 478 

Poe v Gerstein, 517 F. 2d 

787 448 

Poe v TJllman, 367 U. S. 497 434 
Poelker v. Doe, 432 U. S. 519 482 
Pollard's Lessee v. Hagan, 3 

How. 212 551 



Page 

Pollock v. Farmers' Loan & 

Trust Co , 157 U. S. 429 154 
Powell v. United States, 300 

U. S. 276 323 

Prater, In re, 56 C. C. P. A. 

(Pat.) 1360 195,199,201,212 
Prater, In re, 56 C. C. P. A. 

(Pat.) 1381 199,201,212 

Prather v. Pritchard, 26 Ind. 

65 358 

Prince v. Massachusetts, 321 

U. S 158 410, 447, 449, 473 

Procter & Gamble Distributing 

Co. v. Sherman, 2 F. 2d 165 524, 

541, 542 
Proffitt v. Florida, 428 U. S. 

242 1020 

Protective Comm. for Inde- 
pendent Stockholders v. An- 
derson, 390 U. S. 414 88 
Prudential Ins. Co. v. Cheek, 

259 U. S. 530 385 

PruneYard Shopping Center v 

Robins, 447 U. S. 74 648 

Public Affairs Associates, Inc. 

v. Rickover, 369 U. S. Ill 414 
Pumpelly v. Green Bay Co., 13 

Wall. 166 651 

Purcell v. United States, 315 

U. S. 381 321,325,327 

Puyallup Tribe v. Washington 

Game Dept., 433 U. S. 165 560, 

561, 581 
Quilloin v. Walcott, 434 U. S. 

246 410, 437 

R., In re, 1 Cal. 3d 855 477 

R. v. Hansen, Civ. No. C-80- 

0078J (Utah) 406, 

426, 428, 438, 451 
Radio Station WOW, Inc. v. 

Johnson, 326 U. S. 120 633 

Railroad Co. v. Schunneir, 7 

Wafl. 272 551 

Railroad Trainmen v. Baltimore 

& Ohio R. Co., 331 U. S. 519 1023 
^ilway Express Agency, Inc. 

v. New York, 336 U. S. 106 670, 

690 

Raley v. Ohio, 360 U. S. 423 386 
Ranney v. Russell, 10 N. Y. 

Super. 689 359 

Ray v. Blair, 343 U. S. 214 121 



TABLE OF CASES CITED 



LXXI 



Page 

Raymond Motor Transporta- 
tion, Inc. v. Rice, 434 IT. S. 

429 668, 670-672, 674-676, 
678, 679, 681, 685, 687- 
692, 694, 700, 701, 706 

Raymond Motor Transporta- 
tion, Inc. v. Rice, 417 F. 

Supp 1352 665 

Red Lion Broadcasting Co. v. 

FCC, 395 U. S. 367 598, 

603, 604, 616, 620 

Reed v. Reed, 404 U. S. 71 468, 

478, 483 
Reiter v. Sonotone Corp., 442 

U. S. 330 97, 512 

Reitman v. Mulkey, 387 U. S. 

369 470, 474 

Republic Steel Corp. v. Mad- 

dox, 379 TJ. S. 650 736 

Rescue Army v. Municipal 

Court, 331 U. S. 549 386, 392 
Richardson v. Belcher, 404 

U. S. 78 226,239 

Rmaldi v. Yeager, 384 U. S. 

305 469 

Ripon Society v. National Re- 
publican Party, 173 U. S. 

App. D. Q 350 124 

Risdon Iron & Locomotive 

Works v. Medart, 158 U. S. 

68 196 

Roadway Express, Inc. v. 

Piper, 447 U. S. 752 364, 376-378 
Rodriguez v. United States 

Parole Comm'n, 594 F. 2d 

170 32 

Roe v. State, 584 S. W. 2d 257 468 
Roe v. Wade, 410 U. S. 113 419, 
434-436, 438, 439, 441, 
442 
Rooker v. Fidelity Trust Co., 

261 U. S. 114 386 

Rooney v. North Dakota, 196 

U. S. 319 28,33 

Rosario v. Rockefeller, 410 

U. S. 752 115, 

122, 131, 132, 135, 136 
Rosebud Sioux Tribe v. Kneip, 

430 U. S. 584 552 
Rothstein v. Wyman, 467 F. 2d 

226 153 

Royster Guano Co. v. Virginia, 
253 U. S. 412 243,245 



Page 
Rubber-Tip Pencil Co. v. 

Howard, 20 Wall. 498 185 

Rundlett v Oliver, 607 F. 2d 

495 467,468,475,480 

S v. Edwards, 488 F. Supp. 

181 438 

Safeway Stores, Inc. v. Okla- 
homa Retail Grocers Assn., 

360 U. S. 334 386 

Sampson, In re, 65 Misc. 2d 

658 452 

San Antonio Independent School 

Dist. v. Rodriguez, 411 TJ. S. 

1 230, 242, 478 

Sanders v. John Nuveen & Co., 

Inc., 524 F. 2d 1064 1007, 

1008, 1010, 1011 
Sanders v. John Nuveen & Co , 

Inc., 554 F. 2d 790 1007, 1009 
Sanders v. United States, 373 

U. S. 1 956 

San Diego Building Trades 

Council v. Gannon, 359 TI. S. 

236 317, 318 

Sandstrom v. Montana, 442 

U. S. 510 304 

Sanks v. Georgia, 401 U. S. 

144 390 

Scheriff v. Beck, 452 F. Supp. 

1254 362 ; 363 

Schlesinger v. Ballard, 419 U. S. 

498 469,478,483 

Schnute Holtman Co. v. 

Sweeney, 136 Ky. 773 358 

Schulte, Inc. v. Gangi, 328 U. S. 

108 740 

Schweiker v. Wilson, 450 U. S. 

245 683 

Seacoast Anti-Pollution League 

v. Costle, 572 F. 2d 872 97 

Sea Island Broadcasting Corp. 

v. FCC, 200 U. S. App. D. C. 

301 101 

Securities Investor Corp. v. 

Barbour, 421 U. S. 412 766 

Seigal v. Merrick, 590 F. 2d 35 82 
Semaan v. Mumford, 118 U. S. 

App. D. C. 282 789, 791, 792 

Shao Wen Yuan, In re, 38 

C. C. P. A. (Pat.) 967 195, 

196, 211 
Shepherd, Inc. v. Monoghan, 

256 F. 2d 882 538 



LXXII 



TABLE OF CASES CITED 



Page 

Sherbert v. Verner, 374 U S. 

398 713 , 716-720, 722-727 

Sherlock v. Ailing, 93 U. S 99 689 
Sherwood, In re, 613 F 2d 809 205 
Shively, v Bowlby, 152 U. S 

1 551, 552, 556, 576 

Shoshone Indians v United 

States, 324 U. S. 335 575 

Shuttlesworth v. City of Birm- 
ingham, 394 U S. 147 427 
Silverman v. United States, 365 

U. S. 505 1046 

Simmons v United States, 308 

F. 2d 938 791, 793 

Simon v Calif ano, 593 F. 2d 

121 788 

Simonds v Guaranty Bank & 

Trust Co , 480 F. Supp . 1257 354 
Singleton v. Wulff, 428 U. S. 

106 429 

Sioux City Bridge Co. v. 

Dakota County, 260 U S. 

441 517, 535 

Sioux Falls Adjustment Co. v. 

Penn Soo Oil Co., 53 S. D. 

77 358 

62 Cases of Jam v. United 

States, 340 U. S. 593 98, 512 
Skidmore v. Swift & Co, 323 

U. S. 134 104 

Skinner v. Oklahoma ex rel. 

Williamson, 316 U. S. 535 434 
Skokomish Indian Tribe v. 

France, 320 F. 2d 205 556 

Smith, In re, 16 Md. App. 209 438 
Smith v. Allwright, 321 U. S. 

649 134 

Smith v. New York, O. & W. 

R. Co., 119 Misc. 506 359 

Smith v Organization of Foster 

Families, 431 U. S. 816 392 

Smith v. Reeves, 178 U. S. 

436 150 

Smith v Seibly, 72 Wash. 2d 

16 451 

Solakian, In re, 33 C. C. P. A, 

(Pat.) 1054 196 

Sosna v. Iowa, 419 U. S. 393 432 
South Carolina State Highway 

Dept. v Barnwell Brothers, 

Inc , 303 U. S. 177 670, 

680, 690, 691, 697-700 



Page 
Southern Pacific Co. v. Arizona, 

325 U. S. 761 669, 

671, 690, 692, 693, 698 
Southwestern Portland Cement 

Co. v. United States, 435 F. 

2d 504 167 

Spector Motor Service, Inc. v. 

McLaughlm, 323 U. S. 101 265, 

535 
Sproles v. Binford, 286 U. S 

374 670, 690, 700 

Staffend v. Lake Central Air- 
lines, Inc., 47 F. R. D. 218 361 
Stanley v. Georgia, 394 U. S. 

557 434 

Stanley v. Illinois, 405 U. S. 

645 437 

Stanton v. Stanton, 421 U. 8. 

7 468 

Starr v. United States, 153 

U. S. 614 302 

State. See also name of State 
State v. Baker, 464 F. Supp. 

1377 563 

State v. Bell, 377 So. 2d 303 468 
State v. Bowie, 318 So. 2d 407 44 
State v. Brothers, 384 A. 2d 

402 468 

State v. Craig, 169 Mont. 150 479 
State v. Curtis, 363 So. 2d 

1375 30 

State v. Drake, 219 N. W. 2d 

492 468 

State v. Elmore, 24 Ore. App. 

651 468 

State v. Gray, 122 Ariz. 445 467 
State v. Grey, 256 N. W. 2d 74 290 
State v. Henderson, 362 So 2d 

1358 41 

State v. Koome, 84 Wash. 2d 

901 438 

State v. Meloon, 116 N H. 

669 468 

State v. Rundlett, 391 A. 2d 

815 468, 480 

State v. Sandue, 279 Minn. 

229 290 

State v. Thompson, 162 N. J. 

Super. 302 468 

State v. United-Buckingham 

Freight Lines, Inc., 211 

N. W. 2d 288 693 

State v. Ware, 418 A. 2d 1 468 



TABLE OF CASES CITED 



Page 

State v. Wilson, 296 N. C 298 468 
State ex rel. La Follette v. 

Democratic Party, 93 Wis. 

2d 473 127, 130 

State ex rel. Woodward v 

Board of Parole, 155 La. 699 30 
State Farm Mutual Automobile 

Ins. Co. v Duel, 324 U S. 

154 390 

State Tax Common v Van 

Clott, 306 U. S. 511 390 

Steamship Co. v. Johffe, 2 Wall. 

450 391 

Steelworkers v. American Man- 
ufacturing Co., 363 U. S. 564 736 
Steelworkers v. Enterprise 

Wheel & Car Corp., 363 

U. S. 593 736, 744, 745, 747 

Steelworkers v. Warrior & Gulf 

Navigation Co., 363 U. S. 

574 736, 743, 747, 748 

Steelworkers v. Weber, 443 

U. S. 193 259, 750 

Sterner v. Mitchell, 350 IT. S. 

247 738, 739 

Storer v. Brown, 415 U. S. 

724 138 

Stratton v. St. Louis South- 
western R. Co., 284 U. S. 

530 524, 534, 541 

Street v. New York, 394 TJ. S. 

576 385 

Stromberg v, California, 283 

U. S. 359 721 

Stromer v. Browning, 268 Cal. 

App. 2d 513 643 

Strong v. American Fence 

Constr. Co., 245 N. Y. 48 777 
Sumner v. Mata, 449 TJ. S. 539 942, 

956, 1016 
Sweezy v. New Hampshire, 354 

TJ. S. 234 121 

Swift v. Tyson, 16 Pet. 1 153 

Switzerland Cheese Assn. v. E. 

Home's Market, 385 U. S. 

23 84, 85 

Tansey v. Transcontinental & 

Western Air, Inc., 97 F. 

Supp. 458 361 

Tarcy-Horaoch, 55 C. C. P. A. 

(Pat.) 1441 198,201,212 

Tate v. Short, 401 U, S. 395 275, 

284,286,287 



Page 
Taylor v. Kentucky, 436 TJ. S. 

478 302, 304 

Taylor v. Louisiana, 419 TJ. S. 

522 461 

Teamsters v. United States, 

431 TJ. S. 324 252,254 

Tehan v. United States ex rel 

Shott, 382 U. S. 406 297, 298 
Tennessee Coal, Iron & R. Co. 

v. Muscoda Local No. 123, 

321 U. S. 590 741 

TVA v. Hill, 437 U. S. 153 154 
TVA v. Powelson, 319 U. S. 

266 660 

Terry v. Adams, 345 U S. 461 134 
Terry v. Burger, 6 Ohio App. 

2d 53 359 

Texas Dept. of Community 

Affairs v. Burdine, 450 U. S. 

248 972, 1036 

Texas & Pacific R Co. v. 

Abilene Cotton Oil Co., 204 

U. S. 426 318 

Textile Workers v. Lincoln 

Mills, 353 U. S. 448 736, 747 
T. H. v. Jones, 425 F. Supp. 

873 436 

Thermtron Products, Inc. v. 

Hermansdorfer, 423 U. S. 

336 950-952 

Thomas v. Gay, 169 U. S. 264 566 
Thompson v. Oklahoma, 429 

U. S. 1053 958 

Thompson v. Utah, 170 U. S. 

343 29 

Thorpe v. Housing Authority, 

386 U. S. 670 390 

Tigner v. Texas, 310 U. S. 

141 469 

Tilghman v. Proctor, 102 U. S. 

707 184, 185, 206 

Toma, In re, 575 F. 2d 872 203 
Torcaso v. Watkins, 367 U. S. 

488 714, 725 

Touche Ross & Co. v. Reding- 

ton, 442 TJ. S. 560 770, 771, 773 
Transamerica Mortgage Ad- 
visors, Inc. v. Lewis, 444 

U. S. 11 770, 771 

Transit Comm'n v. United 

States, 289 U. S. 121 318,320 
Trimble v. Gordon, 430 U. S. 

762 461 



LXXIV 



TABLE OF CASES CITED 



Page 
Trunkhne Gas Co. v. Hardin 

County, 375 U. S. 8 390 

Truth Seeker Co. v. Burning, 

147 F. 2d 54 361 

Tully v. Griffith, Inc., 429 U. S. 

68 512, 517, 522, 

525, 530, 531, 535, 536 
Tupacyupanqui-Marin v. INS, 

447 F. 2d 603 143 

Turner v. Texas Instruments, 

Inc., 555 F. 2d 1251 256,258 
28 East Jackson Enterprises, 

Inc v. Cullerton, 523 F. 2d 

439 509 

Twining v. New Jersey, 221 

IT. S 78 297 

Udall v. Tallman, 380 II. S. 1 244 
Ullman v. United States, 350 

IT. S. 422 302 

Unexcelled Chemical Corp. v. 

United States, 345 U. S. 59 780 
Union Pacific R. Co. v. Bots- 

ford, 141 U. S. 250 434 

United Gas Pipeline Co. v. 

Whitman, 595 F. 2d 323 538 
United Hospital Services v. 

United States, 384 F. Supp. 

776 5, 14, 19 

United States v. Allegheny- 

Ludlum Steel Corp., 406 

U. S. 742 97 

United States v. Armour & Co., 

402 U S. 673 86 

United States v. Bain, 596 F. 

2d 120 304 

United States v. Ballard, 322 

U. S. 78 714 

United States v. Bayer. 331 

U. S. 532 1018 

United States v. Binghamton 

Constr. Co., 347 U. S. 171 761, 

771, 782 
United States v. Bouchard, 464 

F. Supp. 1316 562, 563 

United States v. Caceres, 440 

U. S. 741 790 

United States v. California 

Portland Cement Co., 413 F. 

2d 161 165, 166, 168, 173, 174 
United States v. Cannelton 

Sewer Pipe Co., 364 U. S. 

76 160, 167, 170, 172 



Page 

United States v. Cartwright, 

411 U. S. 546 169 

United States v. Causby, 328 

U. S. 256 652,655,657 

United States v. Central Eureka 

Mining Co., 357 U. S. 155 649 
United States v. Clarke, 445 

U. S. 253 638, 654, 659 

United States v. Classic, 313 

U. S. 299 124 

United States v. Correll, 389 

U. S. 299 169 

United States v. Darby, 312 

IT. S. 100 739 

United States v. Department of 

Revenue, 191 F. Supp. 723 541 
United States v. De Simone, 

468 F. 2d 1196 32 

United States v. Dickinson, 331 

U. S. 745 652, 653, 655, 660 

United States v. Dow, 357 

U. S. 17 658 

United States v. Dubilier Con- 
denser Corp., 289 U. S. 178 182 
United States v. English, 409 

F. 2d 200 304 

United States v. Finch, 548 F. 

2d 822 550, 554 t 555, 573 

United States v. Florida East 

Coast R. Co., 410 U. S. 224 97 
United States v. Fox Lake 

State Bank, 366 F. 2d 962 789, 

791, 793 
United States v. Fruehauf, 365 

U. S. 146 391 

United States v. Fuller, 409 

TJ. S. 488 660 

United States v. General 

Motors Corp., 323 U. S. 373 653, 

658 
United States v. Harriss, 347 

U. S. 612 427 

United States v. Hicks, 625 F. 

2d 216 468,490 

United States v. Holt State 

Bank, 270 U. S. 49 549, 552- 
554, 568, 569, 580, 581 
United States v. Ideal Basic 

Industries, Inc., 404 F. 2d 

122 164, 167, 172 

United States v. Kagama, 118 

U. S. 375 564 



TABLE OF CASES CITED 



LX3CV 



Page 

United States v. Lazy FC 

Ranch, 481 F. 2d 985 789, 791 
United States v. Livingston, 

179 F. Supp 9 528,541 

United States v Martinez- 

Fuerte, 428 U. S. 543 1046 

United States v. Memphis Cot- 
ton Oil Co., 288 U. S 62 660 
United States v. Miller, 317 

U. S. 369 659 

United States v. Munsingwear, 

Inc , 340 U S. 36 1014, 1023 
United States v. National Assn. 

of Securities Dealers, Inc., 

422 U. S. 694 104 

United States v. National 

Dairy Products Corp., 372 

U. S. 29 427 

United States v. O'Brien, 391 

U. S. 367 469,472 

United States v. Oregon, 295 

U. S. 1 551,552 

United States v. Petty Motor 

Co , 327 U. S 372 658, 659 

United States v. Pollmann, 364 

F. Supp. 995 562, 563 

United States v. Reese, 92 U. S. 

214 428 

United States v. Reynolds, 397 

U. S. 14 657 

United States v. Robel, 389 

U. S. 258 427 

United States v. Rodriguez, 

612 F. 2d 906 334, 335 

United States v. Sanford, 547 

F. 2d 1085 563 

United States v. Sioux Nation 

of Indians, 448 U. S. 371 571, 

575 

United States v. Storer Broad- 
casting Co., 351 U. S. 192 601, 

608-610 
United States v. Washington, 

384 F. Supp. 312 566 

United States v. Wheeler, 435 

U. S. 313 563, 564 

United States v. Willow River 

Co., 234 U. S. 495 656 

U. S. Bulk Carriers, Inc. v. 

Arguelles, 400 U. S. 351 738 
U. S. Dept. of Agriculture v. 

Moreno, 413 U. S. 528 244 



Page 

U. S. Dept. of Agriculture v. 
Murry, 413 U. S. 508 245, 246 

United States ex rel. Glynn v. 
Capeletti Bros., 621 F. 2d 
1309 769, 772 

United States ex rel, TVA v. 
Powelson, 319 U. S. 266 660 

United States ex rel. Zainbetti 
v. American Fence Constr. 
Co., 15 F. 2d 450 777 

U. S. Railroad Retirement Bd. 
v. Fritz, 449 U. S. 166 30, 

235, 242, 243, 245, 342, 
683, 702-704 

Vaca v. Sipes, 386 U. S. 171 735, 

736, 751 

Vachon v. New Hampshire, 414 
U. S. 478 265,280,281 

Valenzula, In re, 275 Cal. App. 
2d 483 28 

Vance v. Bradley, 440 U. S 93 243 

Vance v. Terrazas, 44 U. S. 252 96, 

104 

Vandenbark v. Owens-Illinois 
Glass Co., 311 U. S. 538 390 

Vaugh v. Westinghouse Electric 
Corp., 620 F. 2d 655 252 

Veitch v. Superior Court, 89 
Cal. App. 3d 722 44 

Venner, In re, 46 C. C. P. A. 
(Pat.) 754 196 

Vermont Yankee Nuclear 
Power Corp. v. Natural Re- 
sources Defense Council, 435 
U. S. 519 93, 103, 104 

Villa v. Van Schaick, 299 U. S. 
152 386,390 

Village. See name of village. 

Villena v. INS, 622 F. 2d 1352 144 

Virginia ex rel. Commissioner, 
Dept. of Transp. v. Marshall, 
599 F. 2d 588 761 

Wabash R. Co. v. Public Serv- 
ice Comm'n, 273 U. S. 126 390, 

391 

Wachsmuth v. Orient Ins. Co., 
49 Neb. 590 358 

Wadman, In re. 25 C. C. P. A. 
(Pat.) 936 196 

WAIT Radio v. FCC, 135 U. S. 
App. D. C. 317 609, 611 

Waldbaum, In re, 59 C. C. P. A. 
(Pat.) 940 201 



LXXVI 



TABLE OF CASES CITED 



Page 

Waldbaum, In re, 559 F. 2d 

611 203 

Walker Process Equipment, 

Inc. v. Food Machinery & 

Chemical Corp., 382 U S 

172 506 

Walling v. Harmschfeger, 325 

U. S. 427 741 

Walling v Helmerich & Payne, 

Inc., 323 U. S. 37 740 

Walling v. James V Renter, 

Inc., 321 U. S. 671 390 

Walsh v. Schlect, 429 U. S. 

401 771 

Walsonavich v. United States, 

335 F 2d 96 789, 791 

Walter, In re, 618 F. 2d 758 203 
Walz v. Tax Comm'n, 397 TJ. S. 

664 717, 720, 725, 726 

Warden v Marrero, 417 U. S. 

653 32 

Warth v. Seldin, 422 U. S. 490 414, 

428 
Washington v. Confederated 

Tribes of Colville Indian Res- 
ervation, 447 U. S. 134 566 
Washington v. Davis, 426 U. S. 

229 472 

Washington v. Fishing Vessel 

Assn., 443 U. S. 658 569,570 
Waters v. Heublein, Inc., 485 

F. Supp. 110 362 

Watkins v. W. E. Neiler Co., 

135 Minn. 343 358 

Watson v. Memphis, 373 U. S. 

526 661 

WBEN, Inc. v. United States, 

396 F. 2d 601 609 

Webb's Fabulous Pharmacies, 

Inc. v. Beckwith, 449 U. S. 

155 646 

Weber v. Aetna Casualty & 

Surety Co., 406 U. S. 164 243 
Weinberger v. SaM, 422 U. S 

749 226, 227, 239, 244 

Weinberger v. Wiesenfeld, 420 

U. B. 636 469, 470, 483, 682, 704 
Weimnger v. Metropolitan Fire 

Ins. Co., 359 111. 584 105 

Wellesley v. Wellesley, 2 Bli. 

N. S. 124 449 



Page 
Wengler v. Druggist Mutual 

Ins. Co., 446 U. S. 142 459-461, 

490 
Wen Yuan, In re, 38 C. C. P. A. 

(Pat,) 967 195,196,211 

W. E. P , In re, 318 A. 2d 286 468 
West v. Springfield Fire & 

Marine Ins. Co., 105 Kan. 

414 358 

West Coast Hotel Co. v. 

Parrish, 300 U. S. 370 693 

Westinghouse v. Boyden Power 

Brake Co., 170 U. S. 537 196 
Weston, In re, 17 App. D. C, 

431 196 

West Side Women's Services, 

Inc. v. City of Cleveland, 450 

F. Supp. 796 413 

West Virginia Bd. of Ed. v. 

Barnette, 319 U. S. 624 153 

Whalen v. Roe, 429 U. S. 589 435, 

437 
Whalen v. United States, 445 

U. S. 684 337,344 

Wheeling Steel Corp. v. 

Glander, 337 U. S. 562 682,704 
Whitehall Cement Manufactur- 
ing Co. v. United States, 369 

F. 2d 468 165, 168, 173 

Whitman v. Wilson, 318 U. S. 

688 390 

Whitney v. California, 274 U, S. 

357 386 
Whitney v. SEC, 196 U. S. 

App. D. C. 12 95, 105 

Williams v. Alioto, 549 F. 2d 

136 1013 

Williams v. Georgia, 349 U. S. 

375 390 

Williams v. Illinois, 399 U. S. 

235 284-287 

Williams v. Lee, 358 U. S. 217 564- 

566 
Williams v. New York, 337 

U. S. 241 286 

Williams v, Rhodes, 383 U, S. 

23 121 

Williams v. United States, 341 

U. S. 97 427 

Williams v. United States, 401 

U. S. 646 955 

Williams v. Zbaraz, 448 U. S. 

358 482 



TABLE OF CASES CITED 



Lxxvn 



Page 
Williamson v. Lee Optical Co., 

348 U. S. 483 481 

Wilson v. United States, 149 

U. S. 60 296, 300 

Windward Shipping v. Ameri- 
can Radio Assn., 415 U. S. 

104 645 

Wisconsin v. Yoder, 406 U. S. 

205 447, 449, 714, 717, 718, 720 
Wolfe v. North Carolina, 364 

U. S. 177 390 

Wolff v. McDonnell, 418 U. S. 

539 30, 32 

Wolman v. Walter, 433 U. S. 



229 



727 



Women's Community Health 
Center, Inc. v. Cohen, 477 F. 
Supp. 452 438, 439 

Wood v. Georgia, 450 U. S. 



261 



972-974 



Wood v. Lovett, 313 U. S. 362 30 
Wood v. State, 144 Ga. App. 

236 263 

Wood Brothers Thresher Co. v. 

Eicher, 231 Iowa 550 693 



Page 

Woodby v. INS, 385 U. S. 276 95, 
m A * 96,101-103,105 

Woodward v. Board of Parole, 

155 La. 699 30 

Woodward v. State, 234 Ga. 

901 290 



Woolsey v. O'Brien, 23 Minn. 



71 



358 



Wordin v. Bemis, 33 Conn. 16 358 
Wynn v. Carey, 582 F. 2d 

* 37 5 438,448,454 

Yeager v. Campion, 70 Colo. 

!83 358 

Young, Ex parte, 209 U. S. 

123 522 

Younts v. St. Francis Hospital 

& School of Nursing, Inc 

205 Kan. 292 ' 451 

Yuan, In re, 38 C. C. P. A. 

(Pat.) 967 195,196,211 

Zablocki v. Redhail, 434 U. S. 

3 7 4 434, 441 

Zadig v. Baldwin, 166 U. S. 

485 < 386 

Zambetti v. American Fence 

Constr. Co., 15 F. 2d 450 777 



CASES ADJUDGED 

IN THE 

SUPEEME COUET OF THE UNITED STATES 

AT 

OCTOBER TERM, 1980 



HCSOLATJNDRY v. UNITED STATES 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE THIRD CIRCUIT 

No. 80-338. Decided February 23, 1981 

Held: A cooperative hospital service organization cannot qualify for 
exemption from federal income taxation as a charitable organization 
under 501 (c) (3) of the Internal Revenue Code of 1954, but instead 
may qualify only if it performs one of the services listed in 501 (e) 
(1) (A) . This conclusion is supported both by the principle of statutory 
construction that a specific statute, here subsection (e), controls over a 
general provision such as subsection (c)(3), particularly when the two 
are interrelated and closely positioned, and by the legislative history. 
Since laundry service was deliberately omitted from the list of services 
in subsection (e), petitioner, a nonprofit corporation organized to pro- 
vide laundry services for exempt hospitals and an exempt ambulance 
service, is not entitled to tax-exempt status. 

Certiorari granted; 624 F. 2d 428, affirmed. 

PER CURIAM. 

Petitioner HCSC-Laundry is a Pennsylvania nonprofit cor- 
poration. It was organized in 1967 under the law of that 
Commonwealth "[t]o operate and maintain a hospital laun- 
dry and linen supply program for those public hospitals and 
non-profit hospitals or related health facilities organized and 

1 



2 OCTOBER TERM, 1980 

Per Curiam 450 U. S. 

operated exclusively for religious, charitable, scientific, or edu- 
cational purposes that contract with [it] ." * 

Petitioner provides laundry and linen service to 15 non- 
profit hospitals and to an ambulance service. All these are 
located in eastern Pennsylvania. Each organization served 
possesses a certificate of exemption from federal income taxa- 
tion under 501 (c) (3) of the Internal Revenue Code of 1954, 
26 U. S. C. 501 (c)(3). 2 Each participating hospital pays 
petitioner annual membership dues based upon bed capacity. 
The ambulance service pays no dues. Petitioner's only other 
income is derived from (a) a charge for laundry and linen 
service based upon budgeted costs and (b) a charge of 1% 
cents per pound of laundry. Budgeted costs include operat- 

1 The quoted language is from petitioner's articles of incorporation, as 
amended May 29, 1970. The articles further state that petitioner's cor- 
porate purposes are to be accomplished "in a manner consistent with the 
provisions of Section 501 (c)(3) of the Internal Revenue Code of 1954." 
See 624 F 2d 428, 429, n. 1 (CAS 1980). 

2 Subsections (a) and (c) of 501, to the extent pertinent here, read: 
"(a) Exemption from taxation 

"An organization described in subsection (c) or (d) or section 401 (a) 
shall be exempt from taxation under this subtitle unless such exemption is 
denied under section 502 or 503. 

* 

"(c) List of exempt organizations 
"The following organizations are referred to in subsection (a) : 



"(3) Corporations, and any community chest, fund, or foundation, or- 
ganized and operated exclusively for religious, charitable, scientific, testing 
for public safety, literary, or educational purposes, or to foster national 
or international amateur sports competition (but only if no part of its 
activities involve the provision of athletic facilities or equipment), or for 
the prevention of cruelty to children or animals, no part of the net earn- 
ings of which inures to the benefit of any private shareholder or individual, 
no substantial part of the activities of which is carrying on propaganda, or 
otherwise attempting, to influence legislation (except as otherwise provided 
in subsection (h)), and which does not participate in, or intervene in 
(including the publishing or distributing of statements), any political cam- 
paign on behalf of any candidate for public office." 



HCSC-LAUNDRY v. UNITED STATES 3 

1 Per Curiam 

ing expenses, debt retirement, and linen replacement. The 
amounts charged in excess of costs have been placed in a fund 
for equipment acquisition and replacement. 

No part of petitioner's net earnings inures to the benefit of 
any individual. 

Petitioner was formed after the Lehigh Valley Health Plan- 
ning Council determined that a shared, nonprofit, off-premises 
laundry would best accommodate the requirements of the 
member hospitals with respect to both quality of service and 
economies of scale. The Council had investigated various al- 
ternatives. It had rejected a joint service concept because no 
member hospital had sufficient laundry facilities to serve more 
than itself. A commercial laundry had declined an offer for 
the laundry business of all the hospitals, and most of the other 
available commercial laundries were not capable of managing 
the heavy total volume. 

Petitioner's laundry plant was built and equipped at a cost 
of about $2 million. This was financed through loans from 
local banks, with 15-year contracts from 10 of the hospitals 
used as collateral. Petitioner employs approximately 125 
persons. 

In 1976, petitioner applied for exemption under 501 (c) (3) 
from federal income taxation. The Internal Revenue Service 
denied the exemption application on the grounds that 501 
(e) 3 of the Code was the exclusive provision under which a 

3 Section 501 (e) reads : 
"(e) Cooperative hospital service organizations 

"For purposes of this title, an organization shall be treated as an or- 
ganization organized and operated exclusively for charitable purposes, if 

"(1) such organization is organized and operated solely 

"(A) to perform, on a centralized basis, one or more of the following 
services which, if performed on its own behalf by a hospital which is an 
organization described in subsection (c) (3) and exempt from taxation 
under subsection (a), would constitute activities in exercising or perform- 
ing the purpose or function constituting the basis for its exemption: data 
processing, purchasing, warehousing, billing and collection, food, clinical, 
industrial engineering, laboratory, printing, communications, record center, 



4 OCTOBER TERM, 1980 

Per Curiam 450 U.S. 

cooperative hospital service organization could qualify as "an 
organization organized and operated exclusively for charitable 
purposes" and therefore exempt. Because subsection (e)(l) 
(A) does not mention laundry, the Service reasoned that peti- 
tioner was not entitled to tax exemption. 

Petitioner duly filed its federal corporate income tax return 
for its fiscal year ended June 30, 1976. That return showed 
taxable income of $123,521 and a tax of $10,395. The tax was 
paid. Shortly thereafter, petitioner filed a claim for refund 
of that tax and, when the Internal Revenue Service took no 
action on the claim within six months, see 26 U. S. C. 6532 
(a)(l), petitioner commenced this refund suit in the United 
States District Court for the Eastern District of Pennsylvania. 

On stipulated facts and cross-motions for summary judg- 
ment, the District Court ruled in favor of petitioner, holding 
that it was entitled to exemption as an organization described 
in 501 (c) (3). 473 F. Supp. 250 (1979). The United States 
Court of Appeals for the Third Circuit, however, reversed. It 
held that 501 (e) was the exclusive provision under which a 
cooperative hospital service organization could obtain an in- 
come tax exemption, and that the omission of laundry services 
from 501 (e)(l)(A)'s specific list of activities demonstrated 
that Congress intended to deny exempt status to cooperative 
hospital service laundries. 624 F. 2d 428 (1980). 

and personnel (including selection, testing, training, and education of per- 
sonnel) services; and 

"(B) to perform such services solely for two or more hospitals each of 
which is 

"(i) an organization described in subsection (c) (3) which is exempt from 
taxation under subsection (a), 

"(ii) a constituent part of an organization described in subsection (c) (3) 
which is exempt from taxation under subsection (a) and which, if organized 
and operated as a separate entity, would constitute an organization de- 
scribed in subsection (c)(3), or 

"(iii) owned and operated by the United States, a State, the District 
of Columbia, or a possession of the United States, or a political subdivision 
or an agency or instrumentality of any of the foregoing." 



HCSC-LAUNDRY v. UNITED STATES 5 

1 Per Curiain 

Because the ruling of the Court of Appeals is in conflict 
with decisions elsewhere, 4 we grant certiorari, and we now 
affirm. 

This Court has said: "The starting point in the determina- 
tion of the scope of 'gross income' is the cardinal principle 
that Congress in creating the income tax intended 'to use the 
full measure of its taxing power/ " Commissioner v. Kowal- 
$ki, 434 U. S. 77, 82 (1977), quoting from Helvering v. Clif- 
ord, 309 U. S. 331, 334 (1940). See 61 (a) of the Code, 26 
U. S. C. 61 (a). Under our system of federal income taxa- 
tion, therefore, every element of gross income of a person, cor- 
porate or individual, is subject to tax unless there is a statute 
or some rule of law that exempts that person or element. 

Sections 501 (a) and (c) (3) provide such an exemption, and 
a complete one, for a corporation fitting the description set 
forth in subsection (c) (3) and fulfilling the subsection's re- 
quirements. But subsection (e) is also a part of 501. And 
it expressly concerns the tax status of a cooperative hospital 
service organization. It provides that such an organization 
is exempt if, among other things, its activities consist of "data 
processing, purchasing, warehousing, billing and collection, 
food, clinical, industrial engineering, laboratory, printing, com- 
munications, record center, and personnel (including selection, 
testing, training, and education of personnel) services." 
Laundry and linen service, so essential to a hospital's opera- 

4 Among the cases in conflict with the Third Circuit's ruling are North- 
ern California Central Services, Inc. v. United States, 219 Ct. Cl. 60, 
591 F. 2d 620 (1979), and United Hospital Services, Inc. v. United States, 
384 P. Supp. 776 (SD Tnd. 1974). See also Chart, Inc. v. United States, 
491 F. Supp. 10 (DC 1979) (appeals pending, Nos. 80-1138 and 80-1139 
(CADQ). 

Decisions in accord with the ruling of the Third Circuit include Hospital 
Central Services Assn. v. United States, 623 F. 2d 611 (CA9 1980), cert, 
denied, post, p. 911, and Metropolitan Detroit Area Hospital Services, 
Inc. v. United States, 634 F. 2d 330 (CA6 1980). See also Associated 
Hospital Services, Inc. v. Commissioner, 74 T, C. 213, 231 (1980) (reviewed 
by the court, with four dissents; appeal pending, No. 80-3596 (CA5)). 



6 OCTOBER TERM, 1980 

Per Curiain 45017 S. 

tion, is not included in that list and, indeed, is noticeable for 
its absence. The issue, thus, is whether that omission pro- 
hibits petitioner from qualifying under 501 as an organiza- 
tion exempt from taxation. The Government's position is 
that subsection (e) is controlling and exclusive, and because 
petitioner does not qualify under it, exemption is not avail- 
able. Petitioner takes the opposing position that 501 (c) 
(3) clearly entitles it to the claimed exemption. 

Without reference to the legislative history, the Govern- 
ment would appear to have the benefit of this skirmish, for it 
is a basic principle of statutory construction that a specific 
statute, here subsection (e), controls over a general provision 
such as subsection (c)(3), particularly when the two are in- 
terrelated and closely positioned, both in fact being parts of 
501 relating to exemption of organizations from tax. See 
Bulova Watch Co. v. United States, 365 U. S. 753, 761 (1961). 

Additionally, however, the legislative history provides strong 
and conclusive support for the Government's position. It 
persuades us that Congress intended subsection (e) to be ex- 
clusive and controlling for cooperative hospital service organi- 
zations. Prior to the enactment of subsection (e) in 1968, 
the law as to the tax status of shared hospital service organiza- 
tions was uncertain. The Internal Revenue Service took the 
position that if two or more tax-exempt hospitals created an 
entity to perform commercial services for them, that entity 
was not entitled to exemption. See Rev. Rul. 54-305, 1954r~2 
Cum. Bull. 127. 5 See also 502, as amended, of the 1954 
Code, 26 U. S. C. 502. This position, however, was rejected 
by the Court of Claims in Hospital Bureau of Standards and 
Supplies, Inc. v. United States, 141 Ct. CL 91, 158 F. Supp. 

6 Since the enactment of subsection (e), the Internal Revenue Service 
has adhered to its view that laundry service provided by a cooperative 
hospital service organization is not entitled to exemption under 501. See 
Rev. Rul. 69-160, 1969-1 Cum. Bull. 147; Rev. RuL 69-633, 1969-2 Cum 
Bull. 121. 



HCSC-LAUNDRY v. UNITED STATES 7 

1 Per Curiam 

560 (1958). After expressly noting the uncertainty in the 
law, 6 Congress enacted subsection (e). See Revenue and Ex- 
penditure Control Act of 1968, Pub. L. 90-364, 109 (a), 82 
Stat. 269. 

In considering the provisions of the tax adjustment bill of 
1968 that ultimately became subsection (e), the Senate sought 
to include laundry in the list of services that a cooperative 
hospital service organization could provide and still maintain 
its tax-exempt status. The Treasury Department supported 
the Senate amendment. See 114 Cong. Rec. 7516, 8111-8112 
(1968). At the urging of commercial interests, however (see 
Hearings on Certain Committee Amendments to H. R. 10612 
before the Senate Committee on Finance, 94th Cong., 2d 
Sess., 608 (1976)), the Conference Committee would accept 
only a limited version of the Senate amendment. In recom- 
mending the adoption of subsection (e), the managers on the 
part of the House emphasized that shared hospital service or- 
ganizations performing laundry services were not entitled to 
tax-exempt status under the new provision. See H. R. Conf. 
Rep. No. 1533, 90th Cong., 2d Sess., 43 (1968) ; Senate Com- 
mittee on Finance and House Committee on Ways and 
Means, Revenue and Expenditure Control Act of 1968, Ex- 
planation of the Bill H. R. 15414, 90th Cong., 2d Sess., 1, 20 
(Comm. Print 1968). 

Later, in 1976, at the urging of the American Hospital Asso- 
ciation, the Senate Committee on Finance proposed an amend- 
ment that would have added laundry to the list of services 
specified in subsection (e)(l)(A). Hearings on H. R. 10612 
before the Senate Committee on Finance, 94th Cong., 2d Sess., 
2765-2772 (1976) ; S. Rep. No. 94-938, pt. 2, pp. 76-77 (1976). 
The amendment, however, was defeated on the floor of the 
Senate. 122 Cong. Rec. 25915 (1976). 



See S. Rep. No. 744, 90th Cong., 1st Sess , 200-201 (1967) ; H, R. Conf. 
Rep. No. 1030, 90th Cong., 1st Sess., 73 (1967); 114 Cong. Rec. 7516, 
8111-8112 (1968). 



8 OCTOBER TERM, 1980 

STEVENS, J., dissenting 450 II. S. 

In view of all this, it seems to us beyond dispute that sub- 
section (e)(l)(A) of 501, despite the seemingly broad gen- 
eral language of subsection (c)(3), specifies the types of hos- 
pital service organizations that are encompassed within the 
scope of 501 as charitable organizations. Inasmuch as 
laundry service was deliberately omitted from the statutory 
list and, indeed, specifically was refused inclusion in that list, 
it inevitably follows that petitioner is not entitled to tax- 
exempt status. The Congress easily can change the statute 
whenever it is so inclined. 7 

The judgment of the Court of Appeals is affirmed. 

It is so ordered. 

JUSTICE WHITE dissents and would set the case for plenary 
consideration. 

JUSTICE STEVENS, dissenting. 

Today the Court summarily decides that 501, read in light 
of the legislative history of 501 (e), requires that nonprofit 
cooperative hospital laundries be denied an exemption from 
federal income tax, even though they may satisfy the re- 
quirements of 501 (a) and 501 (c) (3). In my opinion, 
the Court's summary disposition is ill-advised because a full 
understanding of the question presented in this case requires 
an examination of the history underlying the present state 
of the law with respect to the tax status of cooperative hos- 

7 We do not agree with the suggestion made by the Court of Claims in 
Northern California Centred Services, Inc. v. United States, 219 Ct, CL, 
at 67, 591 P. 2d, at 624, that Congress "may have wished not to en- 
courage cooperative hospital laundries by new tax exemptions, to which 
commercial laundries made vehement objections, yet to leave such laun- 
dries free to obtain from the courts the exemptions that existing law 
might afford them/' The extended hearings, the Committee considerations, 
and the floor debates all reveal that Congress was well informed on the 
issue and made a deliberate decision. We necessarily recognize that con- 
gressional choice. 



HCSC-LATJNDRY v. UNITED STATES 9 

1 STEVENS, J., dissenting 

pital service organizations. When the statute is read against 
that background indeed, even when it is read in isolation 
its plain language unambiguously entitles this petitioner to 
an exemption. 

I 

In 1950, Congress amended 101 of the Internal Revenue 
Code of 1939 by adding to that section a paragraph dealing 
with so-called "feeder organizations." Revenue Act of 1950, 
301 (b), Pub. L. 814, ch. 994, 64 Stat. 953. This paragraph 
was subsequently reenacted without substantial change as 
502(a) of the Internal Revenue Code of 1954. 1 In 1952, 
the Treasury Department adopted a regulation designed to 
implement the feeder provision of 101. Treas. Regs. Ill, 
29.101-3 (b). 2 Although this regulation did not specifi- 



c-Section 502 (a) provides: 

"An organization operated for the primary purpose of carrying on a 
trade or business for profit shall not be exempt from taxation under sec- 
tion 501 on the ground that all of its profits are payable to one or more 
organizations exempt from taxation under section 501." 26 U. S. C. 
502 (a). 

2 The feeder regulation was subsequently redesignated Treas. Regs. 118, 
39.101-2 (b) (1953). This regulation, insofar as relevant to this case, 
appears substantially in its original form as Treas. Reg. 1.502-1 (b), 26 
CFR 1.502-1 (b) (1980). It provides, in pertinent part: 

"If a subsidiary organization of a tax-exempt organization would itself be 
exempt on the ground that its activities are an integral part of the ex- 
empt activities of the parent organization, its exemption will not be lost 
because, as a matter of accounting between the two organizations, the 
subsidiary derives a profit from its dealings with its parent organization, 
for example, a subsidiary organization which is operated for the sole pur- 
pose of furnishing electric power used by its parent organization, a tax- 
exempt educational organization, in carrying on its educational activities. 
However, the subsidiary organization is not exempt from tax if it is op- 
erated for the primary purpose of carrying on a trade or business which 
would be an unrelated trade or business (that is, unrelated to exempt ac- 
tivities) if regularly carried on by the parent organization. For example, 
if a subsidiary organization is operated primarily for the purpose of fur- 
nishing electric power to consumers other than its parent organization 



10 OCTOBER TERM, 1980 

STEVENS, J., dissenting 450 U.S. 

cally address cooperative hospital service organizations, it 
did indicate that the Treasury considered cooperative ven- 
tures operated by tax-exempt entities for the purpose of pro- 
viding necessary services to those entities nonexempt feeder 
organizations. 3 

The Internal Revenue Service first applied this regulation 
to cooperative hospital service organizations in a 1954 Rev- 
enue Ruling, Rev. Rul. 54-305, 1954-2 Cum. Bull. 127. In 
that Ruling, the Service held that a corporation organized and 
operated for the primary purpose of operating and maintain- 
ing a purchasing agency for the benefit of its members tax- 
exempt hospitals and other charitable institutions fell within 
the feeder regulation and thus was not entitled to an income 
tax exemption. The corporation at issue realized substantial 

(and the parent's tax-exempt subsidiary organizations), it is not exempt 
since such business would be an unrelated trade or business if regularly 
carried on by the parent organization. Similarly, if the organization is 
owned by several unrelated exempt organizations, and is operated for the 
purpose of furnishing electric power to each of them, it is not exempt 
since such business would be an unrelated trade or business if regularly 
carried on by any one of the tax-exempt organizations/ 7 

3 These cooperative ventures apparently were considered feeder organi- 
zations whether or not they were operated for the purpose of generating 
profits. Despite the fact that the governing statute, 502 (a) , is applica- 
ble only to organizations "operated for the primary purpose of carrying 
on a trade or business for profit," the implementing regulation, 1.502- 
1 (b), does not mention the "for profit" requirement. In several cases 
rejecting the Treasury's contention that cooperative hospital service orga- 
nizations are nonexempt feeders, the courts have emphasized the Treasury's 
failure to take into account the "for profit" requirement of the statute. 
See, e. g., Hospital Bureau of Standards & Supplies, Inc. v. United States, 
141 Ct. 01. 91, 95-96, 158 F. Supp. 560, 563-564 (1958); Hospital Central 
Services Assn. v. United States, 40 AFTR 2d 77-5646, 77-5648 (WD Wash. 
1977) ; Community Hospital Services, Inc. v. United States, 43 AFTR 2d 
79-934, 79-939 to 79-940 (ED Mich. 1979) ; 473 F. Supp. 250, 254-255 
(ED Pa. 1979) (case below) ; Associated Hospital Services, Inc. v. Com- 
missioner, 74 T. C. 213, 234-235 (1980) (Tannenwald, J., dissenting), 
appeal pending, No. 80-3596 (CAS). 



HCSC-LATJNDRY v. UNITED STATES 11 

1 STEVENS, J., dissenting 

profits from its operations and distributed only a portion of 
those profits to its members. Ibid. Accordingly, the Serv- 
ice found that the corporation was operated for the primary 
purpose of carrying on a trade or business for profit within 
the meaning of 101 of the 1939 Code. This Revenue Rul- 
ing, and the regulation on which it was based, are the sources 
of the Treasury's pre-1968 position that cooperative hospital 
service organizations were not entitled to tax-exempt status. 
The first judicial consideration of this position came in 1958 
in Hospital Bureau of Standards <& Supplies, Inc. v. United 
States, 141 Ct. Cl. 91, 158 F. Supp. 560. 4 In that case, a group 
of nonprofit, tax-exempt hospitals formed a nonprofit corpo- 
ration to act as their joint purchasing agent and to perform 
certain research functions on their behalf. The corporation 
brought suit against the Government to recover income taxes 
assessed for 1952 and 1953, alleging that it was entitled to a 
tax exemption under 101 (6) of the 1939 Code, the pred- 
ecessor of present 501 (c) (3) . The Government opposed the 
claimed exemption, arguing primarily that the corporation 
was a feeder organization under Treas. Regs. 118, 39.101- 

2 (b) (1953). The Court of Claims held that the feeder pro- 
vision was inapplicable in that case because the corporation 
was not organized and operated for the primary purpose of 
carrying on a trade or business for profit as required by the 
statute, even though it had reported net income for the two 
tax years in question. 141 Ct. CL, at 95-96, 158 F. Supp., at 
563-564. Accordingly, the court ruled that the corporation 
was entitled to a tax exemption under 101 (6). 6 

4 Justice Stanley Reed, then recently retired from service on this Court, 
sat by designation as a member of the Court of Claims in the Hospital 
Bureau case 

5 The Commissioner never expressly announced a nonacquiescence in 
this decision. However, in an apparent response to the Hospital Bureau 
case, the feeder regulation, 1502-1 (b), was amended in several respects 
in 1963. See T. D. 6662, 1963-2 Cum, Bull. 214, 215-216. See also 
Associated Hospital Services, Inc. v. Commissioner, supra, at 219. 



12 OCTOBER TERM, 1980 

STEVENS, J., dissenting 450 U. S 

Almost 10 years passed before the next important devel- 
opment in this area. In 1967, in connection with the Social 
Security Amendments of 1967, the original version of 501 (e) 
was proposed as an amendment to 501. The proposed 
amendment provided that a cooperative hospital service or- 
ganization would be exempt from income taxation as long 
as it satisfied certain requirements, among them a require- 
ment that it perform only services which, if performed by 
the member hospitals themselves, would constitute an inte- 
gral part of their exempt activities. See S. Rep. No. 744, 
Social Security Amendments of 1967, Report of the Senate 
Committee on Finance, 90th Cong., 1st Sess., 201-202, 318- 
319 (1967). The legislative history indicates that laundry 
services were considered within the scope of the proposed 
amendment. Id., at 201. The legislative history also indi- 
cates that Congress was aware of the Treasury's belief that 
such cooperative ventures were not tax exempt because of the 
Code's feeder provision. Id., at 200-201. 6 However, the 
Senate Report noted as well that the Court of Claims in Hos- 
pital Bureau, "the leading case in point," had rejected the 
Treasury's position. S. Rep. No. 744, at 201, and n. 1. 

The proposed amendment was not accepted by the House 
in its original form. See H. R. Conf. Rep. No. 1030, 90th 
Cong., 1st Sess., 73 (1967), Rather, during 1968, 501 (e) in 

6 Under the heading "Present law," the Senate Report contains the fol- 
lowing statement: 

"If two or more tax-exempt hospitals join together in creating an entity 
to perform services for the hospitals, the Internal Revenue Service takes 
the position that the entity constitutes a 'feeder organization' and is not 
entitled to income tax exemption because of a special provision of the 
code applicable to such organizations. This is true even though the serv- 
ice performed, if performed by each of the hospitals individually, would 
be considered an integral part of their exempt activities. In spite of this 
position of the Service, the leading case in point held such an entity fur- 
nishing services to hospitals to be exempt from tax." S. Rep. No. 744, at 
200-201. 



HCSC-LATJNDRY v. UNITED STATES 13 

1 STEVENS, J., dissenting 

its present form was enacted into law as part of the Revenue 
and Expenditure Control Act of 1968. 7 The 1968 legislative 
history is set forth in adequate detail in the majority opinion, 
ante, at 6-7, and in the opinion of the Court of Appeals, 
624 F. 2d 428, 433-434 (CAS 1980), and does not warrant 
repetition here. 8 As I read that legislative history, it estab- 
lishes that Congress deliberately omitted laundry services 



7 Section 501 (e) provides, in pertinent part; 

"For purposes of this title, an organization shall be treated as an organi- 
zation organized and operated exclusively for charitable purposes, if 

"(1) such organization is organized and operated solely 

"(A) to perform, on a centralized basis, one or more of the following 
services which, if performed on its own behalf by a hospital which is an 
organization described in subsection (c) (3) and exempt from taxation 
under subsection (a), would constitute activities in exercising or perform- 
ing the purpose or function constituting the basis for its exemption: data 
processing, purchasing, warehousing, billing and collection, food, clinical, 
industrial engineering, laboratory, printing, communications, record center, 
and personnel (including selection, testing, training, and education of per- 
sonnel) services; and 

"(B) to perform such services solely for two or more hospitals each of 
which is 

"(i) an organization described in subsection (c) (3) which is exempt 
from taxation under subsection (a), 

"(ii) a constituent part of an organization described in subsection (c) (3) 
which is exempt from taxation under subsection (a) and which, if orga- 
nized and operated as a separate entity, would constitute an organization 
described in subsection (c)(3), or 

"(iii) owned and operated by the United States, a State, the District of 
Columbia, or a possession of the "United States, or a political subdivision 
or an agency or instrumentality of any of the foregoing; 

"(2) such organization is organized and operated on a cooperative basis 
and allocates or pays, within S 1 /^ months after the close of its taxable 
year, all net earnings to patrons on the basis of services performed for 
them; and 

"(3) if such organization has capital stock, all of such stock outstanding 
is owned by its patrons." 26 U. S C. 501 (e). 

8 See also Metropolitan Detroit Area Hospital Services, Inc. v. United 
States, 634 F. 2d 330, 334-335 (CA6 1980). 



14 OCTOBER TERM, 1980 

STEVENS, J., dissenting 450 U.S. 

from 501 (e) and clearly intended that joint hospital laun- 
dries not be entitled to claim an income tax exemption under 
501 (e). These conclusions are reinforced by Congress' re- 
jection in 1976 of a proposed amendment to 501 (e) that 
would have added laundry services to that subsection's list 
of eligible services. See ante, at 7. 

Despite the enactment of 501 (e) in 1968, it was not until 
1980 that a federal court decided that nonprofit cooperative 
hospital laundries were not entitled to an income tax exemp- 
tion under 501. 9 Between 1968 and 1980, six federal courts 
rejected the Treasury's contention that hospital service or- 
ganizations providing services other than those listed in 501 
(e) were not entitled to claim an exemption under 501 (c) 
(3)/ 10 These courts also rejected the Treasury's alternative 
contention that, even if such entities were not automatically 
excluded from consideration under 501 (c)(3), they none- 
theless were nonexempt feeder organizations under 502 (a) 
and Treas. Reg. 1.502-1 (b). In 1980, however, three 
Courts of Appeals concluded that 501 (e) provides the ex- 

9 The Internal Revenue Sendee, shortly after enactment of 501 (e) , 
ruled that 501 (e) did not provide an exemption for hospital service 
organizations that performed laundry services. Rev. Rul. 6&-160, 1969-1 
Cum. Bull 147. The Service also ruled that because laundry services 
were not among those listed in 501 (e), a joint hospital laundry service 
could not claim a tax exemption under 501 (c)(3). Rev. Rul. 69-633, 
1969-2 Cum. Bull. 121. 

10 See United Hospital Services, Inc. v. United States, 384 F. Supp. 776 
(SD Ind. 1974); Hospital Central Services Assn. v. United States, 40 
AFTR 2d 77-5646 (WD Wash. 1977) ; Metropolitan Detroit Area Hos- 
pital Services, Inc. v. United States, 445 F. Supp. 857 (ED Mich. 1978) ; 
Northern California Central Services, Inc. v. United States, 219 Ct. Cl. 60, 
591 F. 2d 620 (1979) ; Community Hospital Services, Inc. v. United States, 
43 AFTR 2d 79-934 (ED Mich, 1979); 473 F. Supp. 250 (ED Pa. 1979) 
(case below). See also Chart, Inc. v. United States, 491 F. Supp. 10 (DC 
1979), appeal pending, Nos. 80-1138, 80-1139 (CADC), in which the 
District Court held that an organization that qualifies for exemption under 
501 (e) may nonetheless also claim the broader exemption provided by 
501(o) (3). 



HCSC-LAUNDRY v. UNITED STATES 15 

1 STEVENS, J., dissenting 

elusive means by which a hospital service organization may 
acquire an income tax exemption. 11 These courts relied pri- 
marily upon the 1968 and 1976 legislative history cited by 
the majority. The decision of the Third Circuit, the first in 
this series of Court of Appeals decisions, is presently before 
us. 

II 

In the District Court in this case, the Government argued, 
as it had on five previous occasions, that because Congress 
deliberately omitted hospital laundries from 501(e), it 
necessarily followed that they also were outside the scope of 
501 (c)(3). See 473 F. Supp. 250, 252 (ED Pa. 1979). 
The District Court rejected this argument, choosing instead 
to align itself with the then-unbroken line of precedent. Id., 
at 253-254. 12 The District Court also rejected the Govern- 
ment's alternative argument based upon 502 (a). On ap- 
peal, the Government abandoned this argument, see 624 F. 
2d, at 432, n. 6, and relied solely upon 501 (e). 13 Thus, as 



11 See 624 F 2d 428 (CAS 1980) (case below) ; Hospital Central Services 
Assn. v. United States, 623 F. 2d 611 (CA9 1980), cert, denied, post, p. 
911; Metropolitan Detroit Area Hospital Services, Inc. v. United States, 
supra. 

In Associated Hospital Services, Inc. v. Commissioner, 74 T. C. 213 
(1980), appeal pending, No. 80-3596 (CA5), a sharply divided Tax Court 
held that a nonprofit cooperative hospital laundry was not entitled to tax 
exemption under 501, because of the feeder regulation, Treas. Reg. 
1.502-1 (b). However, as explained in note 13, infra, the Tax Court's 
reasoning is in conflict with that in the above-cited cases and, in fact, 
supports the position of the petitioner in the instant case. 

12 See cases cited in note 10, supra. 

13 In Associated Hospital Services, Inc. v. Commissioner, supra f the Tax 
Court, over the dissent of four judges, accepted the Government's argu- 
ment that the hospital laundry cooperative was a "feeder organization" 
under 502 and Treas. Reg. 1.502-1 (b) and therefore nonexempt. For 
the reasons stated in the dissenting opinions of Judge Tannenwald and 
Judge Wilbur, I disagree with that decision. What is significant about the 
Tax Court's holding, however, is that even the majority did not accept the 



16 OCTOBER TERM, 1980 

STEVENS, J., dissenting 450 TJ S. 

shaped by the proceedings below, the question presented here 
is whether Congress, in enacting 501 (e), intended that coop- 
erative hospital service organizations must qualify for tax 
exemption under that statute or not at all. The Court con- 
cludes that the statutory language and legislative history re- 
quire an affirmative answer to that question. Neither fac- 
tor, in my judgment, supports the Court's conclusion. 



Correct analysis of the income tax exemption provisions at 
issue in this case ..should focus upon the language of the stat- 
utory provision which actually creates the exemption. That 
provision is 501 (a), which states: 

"An organization described in subsection (c) or (d) or 
section 401 (a) shall be exempt from taxation under this 
subtitle unless such exemption is denied under section 
502 or 503." 26 U. S. C. 501 (a). 

This language is clear and unambiguous. Insofar as relevant 
in this case, it provides that organizations meeting the re- 
quirements of 501 (c)(3) shall be exempt from the federal 
income tax. 14 Such organizations are to be denied exemption 

Government's present contention that 501 (e) precludes any tax exemp- 
tion for a laundry cooperative even if it is not a feeder organization under 
502. The Tax Court observed that laundry services had been inten- 
tionally omitted from 501(e), but nonetheless went on to consider 
502 (a) and Treas. Reg. 1.502-1 (b). This inquiry would have been 
wholly unnecessary if, as the Government argues in this case, hospital 
service organizations not listed in 501 (e) are not entitled to claim an 
exemption under 501(c)(3). For, as explained in Part II-A, infra, 
502 operates to deny a tax exemption to certain organizations which 
otherwise would be entitled to exemption under 501 (c)(3). 
"Section 501 (c) provides, in pertinent part: 
"The following organizations are referred to in subsection (a) : 

* 

"(3) Corporations, and any community chest, fund, or foundation, or- 
ganized and operated exclusively for religious, charitable, scientific, test- 
ing for public safety, literary, or educational purposes, or to foster 



HCSC-LAUNDRY v. UNITED STATES 17 

1 STEVENS, J., dissenting 

only if they fall within the provisions of 502 or 503. Sec- 
tion 501 (a) contains no reference to 501 (e), nor does 501 
(c) (3) indicate that it is in any way limited by 501 (e). 

Applying this plain statutory language to the facts of this 
case, it is clear that, but for 501 (e), petitioner is entitled 
to a tax exemption under 501 (a) and 501 (c)(3). It is 
undisputed that petitioner satisfies the requirements of 501 
(c)(3). 15 Therefore, under 501 (a) petitioner is exempt 
from taxation unless one of the two express exceptions identi- 
fied in that subsection applies. The District Court found 502 
inapplicable because petitioner was not operated on a "for 
profit" basis. 473 F. Supp., at 254-255. This finding has 
not been challenged by the Government, Section 503 is sim- 
ply irrelevant in this case. Therefore, the plain language of 
the relevant statutes clearly states that petitioner is a tax- 
exempt organization. 

The majority overrides this plain statutory language by 
construing 501 (e) as an exception to the broad charitable 



tional or international amateur sports competition (but only if no part 
of its activities involve the provision of athletic facilities or equipment), 
or for the prevention of cruelty to children or animals, no part of the 
net earnings of which inures to the benefit of any private shareholder or 
individual, no substantial part of the activities of which is carrying on 
propaganda, or otherwise attempting, to influence legislation (except as 
otherwise provided in subsection (h)), and which does not participate in, 
or intervene in (including the publishing or distributing of statements), 
any political campaign on behalf of any candidate for public office." 26 
U. S. C. 501 (c)(3). 

15 After rejecting the Government's contention that 501 (e) controlled 
this case, the District Court found that petitioner is a charitable organi- 
zation within the meaning of 501 (c) (3) . 473 F. Supp., at 254 Al- 
though it reversed the District Court's decision, the Court of Appeals did 
not disturb this finding. Rather, it concluded that petitioner was not 
entitled even to attempt to qualify for an income tax exemption under 
501 (c) (3), because 501 (e) exclusively governs the tax status of coop- 
erative hospital service organizations. Thus, the Court of Appeals con- 
sidered its inquiry ended once it was established that petitioner provided 
a service not listed in 501 (e) . 



18 OCTOBER TERM, 1980 

STEVENS, J , dissenting 450 U. S 

exemption created by 501 (a) and 501 (c)(3). Construed 
in this manner, 501 (e) operates to deny a tax exemption to 
organizations that otherwise satisfy the express statutory re- 
quirements for exemption. The 501 (e) exception itself, 
however, is not express: rather than identifying particular 
organizations as nonexempt, 501 (e) identifies particular or- 
ganizations as exempt and, apparently by implication, denies 
all similar but unlisted organizations the exemption otherwise 
available under 501 (a) and 501 (c)(3). 

The Court silently dismisses the fact that 501 (a) and 
501 (c)(3) contain no reference indicating that 501 (e) is 
to have this limiting effect; the necessary connection be- 
tween the statutes is supplied instead by the Court's finding 
that 501 (e) is "interrelated" with and "closely positioned" 
to 501 (c)(3). Ante, at 6. It cannot be denied that 501 
(e) is close in position to 501 (c)(3). But a statute's text 
is surely more significant than its physical location. 16 And to 
state, as the majority does, that 501 (c) (3) and 501 (e) are 
"interrelated" is to substitute conclusion for analysis. Apart 
from their proximity to one another, the only express relation- 
ship between these statutes is that certain entities described 
in 501 (e) are to be treated as charitable organizations under 
501 (c) (3) for federal income tax purposes. Nothing in any 
of the relevant statutes suggests that 501 (e) is to have the 
effect of denying an exemption to organizations that satisfy 
the requirements of 501 (c) (3) . When Congress wanted a 
statute to have such an effect, it had no difficulty making its 
intention unmistakably plain, as is evident from 501 (a)'s 
reference to 502 and 503. The language Congress em- 

16 If Congress, in a wholly separate section of the Tax Code, had clearly 
stated that all hospital service organizations except those specifically 
enumerated shall be denied income tax exemption, the Court would not 
decline to give that statute effect merely because it was not a part of 501. 
Similarly, in this case it seems to me that 501 (e) 's position cannot take 
the place of a congressional declaration that certain organizations be denied 
tax exemption. 



HCSC-LAUNDRY v. UNITED STATES 19 

1 STEVENS, J., dissenting 

ployed in 501 (e) reflects an intention to enlarge, not to re- 
duce, the category of organizations entitled to exemption 
under 501 (c)(3). 17 

B 

The Court supports its interpretation of 501 with a dis- 
cussion of legislative history. However, this discussion makes 
no reference to the legislative history of the statutory provi- 
sions primarily at issue in this case, 501 (a) and 501 (c) 
(3). Instead, the Court focuses upon the legislative history 
of 501 (e). In my opinion, insofar as the Court relies upon 
this legislative history, its decision rests upon a non sequitur. 
Because the text and legislative history of 501 (e), which 
was enacted in 1968, persuade the Court that petitioner is 
not entitled to an exemption under that section, the Court 
concludes that petitioner also is not entitled to claim exemp- 
tion under 501 (c) (3), which was enacted in 1954. 18 Unless 
the later statute limited the scope of the earlier statute, the 
conclusion is not supported by the premise. 

The legislative history of 501 (e) might support the 
Court's position if it unambiguously revealed: (1) that Con- 
gress in 1968 believed that no cooperative hospital service 
organization could satisfy the requirements of 501 (c)(3) 
and it therefore enacted 501 (e) to extend a tax exemption 
to certain entities previously not entitled to exemption; or 
(2) that Congress in 1968 believed that cooperative hospital 



17 Indeed, several courts have specifically concluded that 501 (e) was 
intended to expand, not to contract, the category of organizations eligible 
for tax exemption under 501(c)(3). See, e. g. } Northern. California 
Central Services, Inc. v. United States, 219 Ct. CL, at 67, 591 F. 2d, at 
624; 473 F. Supp., at 253; Metropolitan Detroit Area Hospital Services, 
Inc. v. United States, 445 F. Supp,, at 860; United Hospital Services, Inc. 
v. United States, 384 F. Supp., at 781. 

18 In fact, 501 (c) (3) had as its predecessor 101 (6) of the Internal 
Revenue Code of 1939. However, for purposes of the analysis in the text, 
the precise point of origin of 501 (c)(3) is unimportant; it is sufficient 
that 501 (c)(3) was enacted well before 501 (e). 



20 OCTOBER TERM, 1980 

STEVENS, J., dissenting 450 U S. 

service organizations were at least arguably entitled to tax 
exemption under 501 (c) (3) and it enacted 501 (e) to 
withdraw this exemption from some, but not all, of these 
entities. The legislative history provides persuasive support 
for neither proposition. 

In my opinion, 501 (e) unambiguously granted a tax ex- 
emption to certain entities that arguably already were en- 
titled to an exemption under 501(c)(3). There is ab- 
solutely no evidence that the 1968 statute was intended to 
withdraw any benefits that were already available under the 
1954 Act. Proper analysis, therefore, should focus on the 
question whether petitioner would have been entitled to an 
exemption under pre-1968 law. 

The 1954 Act created a broad category of exempt organiza- 
tions, including corporations "operated exclusively for . . . 
charitable . . . purposes." That hospitals could qualify for 
exemption has always been clear. The question whether a 
cooperative organization formed by a group of tax-exempt 
hospitals to provide services for the hospitals could also qual- 
ify for exemption was less clear. As discussed in Part I, 
supra, prior to 1968 the Treasury took the position that such 
a cooperative was a "feeder organization" within the mean- 
ing of 502 of the Code. 19 This position, however, was re- 
jected by the Court of Claims which quite properly in my 
opinion held that such a cooperative was not a "feeder" and 
was exempt under what is now 501 (c)(3). See Hospital 
Bureau of Standards & Supplies, Inc. v. United States, 141 
Ct. Cl. 91, 158 F. Supp. 560 (1958). 

As a matter of history presumably because cooperative 
service organizations were fairly common in the hospital in- 

19 According to the Treasury, hospital cooperatives were denied tax 
exemption, not because they failed to satisfy the requirements of 501 
(c)(3), but because, in the Treasury's judgment, they were feeder orga- 
nizations and thus within an express exception to the charitable exemp- 
tion provisions. See Rev. Rul. 54-305, 1954-2 Cum Bull. 127; Treas. 
Reg. 1.502-1 (b). 



HCSC-LAUNDRY v UNITED STATES 21 

1 STEVENS, J., dissenting 

dustry the 502 issue arose in disputes between the Treas- 
ury Department and hospital affiliates. Conceptually, how- 
ever, there is no reason why the identical issue could not 
arise if other tax-exempt entities, such as schools or churches, 
might find it advantageous to form cooperatives to perform 
some of their essential functions for them. 20 In any event, 
when the issue was brought to the attention of Congress in 
1967 and 1968, the focus of the dispute still concerned hospi- 
tal affiliates. Congress then made an unequivocal policy 
choice rejecting the position of the Treasury and granting an 
unambiguous exemption to cooperative hospital service orga- 
nizations performing certain described functions. 21 Nothing 
in the 1968 legislation explicitly or implicitly qualified the 
exemption previously available under 501. 22 



20 Indeed, in its feeder regulation the Treasury clearly indicated that 
its opposition to tax exemption for cooperative service organizations was 
not limited to hospital cooperatives, but rather extended to all cooperative 
service organizations formed by two or more tax-exempt entities. See 
Treas. Reg. 1. 502-1 (b). 

21 It seems clear from the legislative history that Congress was aware 
that cooperative hospital service organizations were at least arguably en- 
titled to exemption prior to 1968. Several passages in the legislative his- 
tory indicate that Congress knew that the Treasury believed that such 
organizations were not entitled to exemption; nothing in the legislative 
history suggests that Congress approved of this position. See S. Rep. 
No. 744, 90th Cong., 1st Sess., 200-201 (1967); 114 Cong. Rec. 7516 
(1968) ; id., at 8112. Congress also was aware that the Treasury's posi- 
tion was based primarily upon 502 (a), rather than 501 (c)(3), and 
that its position had been rejected by "the leading case in point." See 
supra, at 12. 

22 In fact, since the Treasury's opposition to tax-exempt status for hos- 
pital service organizations was based on 502, rather than 501 (c) (3), 
it is more reasonable to construe the enactment of 501 (e) as a 
congressional attempt to limit 502, rather than 501 (c)(3). Some of 
the language of 501 (e) supports this view. For example, 501 (e) (2) 
provides that a cooperative hospital service organization qualifying for ex- 
emption under that subsection must allocate or pay to its members all net 
earnings within 8% months after the close of its taxable year. Section 



22 OCTOBER TERM, 1980 

STEVENS, J., dissenting 450 U.S. 

Section 501 (e) does not confer an exemption on coopera- 
tive educational or religious service organizations. 23 If such 
organizations would previously have been exempt under 501 
(c)(3), should the 1968 Act be construed to have withdrawn 
the exemption by reason of the fact that Congress saw fit 
to confine the benefit of its clarifying amendment to "coop- 
erative hospital service organizations"? I think the answer 
is clear and that the same answer should apply to a hospital 
cooperative that is not expressly covered by the 1968 Act. 
Its tax status should be evaluated on the basis of the remain- 
ing relevant provisions of the Internal Revenue Code. 

502, which was the congressional response to the series of "destination 
of income" cases culminating in the famous case involving the New York 
University School of Law's noodle factory, C. F. Mueller Co. v. Commis- 
sioner, 190 F. 2d 120 (CAS 1951), was directed precisely at organizations 
which funneled their net income to tax-exempt institutions Thus, organi- 
zations which might otherwise reasonably be considered feeder organiza- 
tions are entitled to exemption under 501 (e). However, there is no 
reason why a cooperative organization that operates on a nonprofit basis 
and does not funnel earnings back to its members, such as the petitioner 
in this case, cannot qualify for an income tax exemption under 501 
(c)(3). Such an organization, deprived of the shield of 501 (e), should 
nonetheless be tax exempt if it can avoid challenge as a feeder on its own 
merits. 

The conclusion that 501 (e) was designed as a shield for certain or- 
ganizations that otherwise would be considered nonexempt feeders is also 
supported by the fact that the exemption available under 501 (e) is 
more restrictive than that available under 501 (c)(3). As the District 
Court in Chart, Inc. v. United States, 491 F. Supp. 10 (DC 1979), appeal 
pending, Nos. 80-1138, 80-1139 (CADC), observed, organizations which 
qualify for tax exemption under 501 (c) (3) are able to operate with a 
great deal more flexibility than those qualifying under 501 (e). Id., at 
13-14. Congress may well have designed 501 (e) to provide a limited 
form of tax exemption for previously nonexempt feeder organizations. 

23 Section 501 (f ) is entitled "Cooperative service organizations of op- 
erating educational organizations/' but it is not analogous to 501 (e). 
Section 501 (f) concerns organizations organized and operated to invest 
funds on behalf of educational institutions and to pay the resulting in- 
come to these institutions. 



ECSC-LATJNDRY v. UNITED STATES 23 

1 STEVENS, J., dissenting 

I recognize that both in 1968 and in 1976 attempts were 
made to extend the explicit 501 (e) exemption to encompass 
hospital laundry cooperatives and that these attempts were 
rejected. This legislative history proves nothing more than 
what is already plainly stated in the statute itself: the 501 
(e) exemption is not available to petitioner. That is equally 
true of a cooperative educational service organization. But 
that fact does not evidence any intent by Congress to with- 
draw whatever exemption would be available to such organi- 
zations under other provisions of the Code. 

Nor does logic compel the conclusion that Congress in- 
tended to withdraw a pre-existing exemption. As a matter 
of tax policy, nothing that I have read provides any obvious 
legitimate basis for giving hospital service organizations more 
favorable treatment than other charitable service organiza- 
tions, or for giving a data processing or food service organiza- 
tion better treatment than a laundry service organization. 
Furthermore, I cannot accept the kind of reasoning which 
unfortunately may characterize our summary dispositions 
that interprets a statute that was plainly intended to do noth- 
ing more than extend a certain benefit to some taxpayers as 
though it were intended to withdraw a benefit otherwise avail- 
able to other taxpayers. 

I respectfully dissent. 



24 OCTOBER TERM, 1980 

Syllabus 450 U.S. 

WEAVER v. GRAHAM, GOVERNOR OF FLORIDA 

CERTIORARI TO THE SUPREME COURT OF FLORIDA 
No. 79-5780. Argued November 5, 1980 Decided February 24, 1981 

Held: A Florida statute repealing an earlier statute and reducing the 
amount of "gain time" for good conduct and obedience to prison rules 
deducted from a convicted prisoner's sentence is unconstitutional as an 
ex post facto law as applied to petitioner, whose crime was committed 
before the statute's enactment. Pp. 28-36. 

(a) For a criminal or penal law to be ex post facto, it must be retro- 
spective, that is, it must apply to events occurring before its enactment, 
and it must disadvantage the offender affected by it. Lindsey v. Wash- 
ington, 301 U. S 397, 401; Colder v. Bull, 3 Ball. 386, 390. It need 
not impair a "vested right." Even if a statute merely alters penal pro- 
visions accorded by the grace of the legislature, it violates the Ex Post 
Facto Clause if it is both retrospective and more onerous than the law 
in effect on the date of the offense. Pp. 28-31. 

(b) The effect, not the form, of the law determines whether it is 
ex post facto. Although the Florida statute on its face applies only 
after its effective date, respondent conceded that the statute is used to 
calculate the gain time available to prisoners, such as petitioner, con- 
victed for acts committed before the statute's effective date. Regard- 
less of whether or not the prospect of gain time was in some technical 
sense part of the petitioner's sentence, the statute substantially alters 
the consequences attached to a crime already completed, changing the 
quantum of punishment, and thus is a retrospective law which can be 
constitutionally applied to petitioner only if it is not to his detriment. 
Pp. 31-33. 

(c) The Florida statute is disadvantageous to petitioner and other 
similarly situated prisoners. The reduction in gain time that had been 
available under the repealed statute for abiding by prison rules and 
adequately performing assigned tasks lengthens the period that someone 
in petitioner's position must spend in prison. It is immaterial that 
other statutory provisions were also enacted whereby a prisoner might 
earn extra gain time by satisfying extra conditions. The award of such 
extra gain time is purely discretionary, contingent on both the correc- 
tional authorities' wishes and the inmate's special behavior, and thus 
none of the provisions for extra gain time compensates for the reduction 
of gain time available solely for good conduct. The new provision there- 
fore constricts the inmate's opportunity to earn early release and thereby 



WEAVER v. GRAHAM 25 

24 Opinion of the Court 

makes more onerous the punishment for crimes committed before its 
enactment. Pp. 33-36. 

376 So. 2d 855, reversed and remanded. 



MARSHALL, J., delivered the opinion of the Court, in which 
STEWART, WHITE, POWELL, and STEVENS, JJ., joined. BLACKMTTN, J., filed 
an opinion concurring in the judgment, in which BURGER, C. J., joined, 
post, p. 36. REHNQTIIST, J., filed an opinion concurring in the judgment, 
post, p. 37. 

Thomas C. MacDonald, Jr., by appointment of the Court, 
446 U. S. 916, argued the cause and filed briefs for petitioner. 

Wallace E. Allbritton, Assistant Attorney General of Flor- 
ida, argued the cause for respondent. With him on the brief 
was Jim Smith, Attorney General. 

JUSTICE MARSHALL delivered the opinion of the Court. 

Florida, like many other States, rewards each convicted 
prisoner for good conduct and obedience to prison rules by 
using a statutory formula that reduces the portion of his sen- 
tence that he must serve. In this case, we consider whether 
a Florida statute altering the availability of such "gain time 
for good conduct" a is unconstitutional as an ex post -facto law 
when applied to petitioner, whose crime was committed be- 
fore the statute's enactment. 

I 

The relevant facts are undisputed. Petitioner pleaded 
guilty to second-degree murder. The crime charged occurred 
on January 31, 1976. On May 13, 1976, petitioner was con- 
victed and sentenced to a prison term of 15 years, less time 



1 Fla. Stat. 944.275 (1) (1979) ; Fla. Btst. 944.27 (1) (1975). At the 
time of petitioner's offense, Florida used the term "good-time," to refer 
to extra "allowance for meritorious conduct or exceptional industry." Fla. 
Stat. 944.29 (1975). The current Florida law adopts the phrase "gain- 
time" to apply to various kinds of time credited to reduce a prisoner's 
prison term. See, e. g., Fla. Stat. 944.275 (3) (1979). 



26 OCTOBER TERM, 1980 

Opinion of the Court 450 U. S. 

already served. The state statute in place on both the date 
of the offense and the date of sentencing provided a formula 
for deducting gain-time credits from the sentences "of every 
prisoner who has committed no infraction of the rules or reg- 
ulations of the division, or of the laws of the state, and who 
has performed in a faithful, diligent, industrious, orderly and 
peaceful manner, the work, duties and tasks assigned to him." 
Fla. Stat. 944.27(1) (1975). 2 According to the formula, 
gain-time credits were to be calculated by the month and 
were to accumulate at an increasing rate the more time the 
prisoner had already served. Thus, the statute directed that 
the authorities "shall grant the following deductions" from a 
prisoner's sentence as gain time for good conduct: 

"(a) Five days per month off the first and second years 
of his sentence; 

"(b) Ten days per month off the third and fourth years 
of his sentence; and 

"(c) Fifteen days per month off the fifth and all suc- 
ceeding years of his sentence." Fla. Stat. 944.27 (1) 
(1975). 

In 1978, the Florida Legislature repealed 944.27 (1) and 
enacted a new formula for monthly gain-time deductions. 
This new statute provided: 

"(a) Three days per month off the first and second 
years of the sentence; 

"(b) Six days per month off the third and fourth years 
of the sentence; and 

"(c) Nine days per month off the fifth and all succeed- 
ing years of the sentence." Fla. Stat. 944.275 (1) 
(1979). 3 

2 The statute also provided for extra discretionary good time, based on 
other factors. See n. 18, infra. 

3 There are some minor language differences in the new provision direct- 
ing the correctional authorities at the Department of Offender Rehabilita- 
tion to make the gain-time deductions. The phrase "who has performed 



WEAVER v. GRAHAM 27 

24 Opinion of the Court 

The new provision was implemented on January 1, 1979, and 
since that time the State has applied it not only to prisoners 
sentenced for crimes committed since its enactment in 1978 ; 
but also to all other prisoners, including petitioner, whose 
offenses took place before that date. 4 

Petitioner, acting pro se, sought a writ of habeas corpus 
from the Supreme Court of Florida on the ground that the 
new statute as applied to him was an ex post facto law pro- 
hibited by the United States and the Florida Constitutions. 5 
He alleged that the reduced accumulation of monthly gain- 
time credits provided under the new statute would extend his 
required time in prison by over 2 years, or approximately 
14 percent of his original 15-year sentence.* The State Su- 

in a satisfactory and acceptable manner the work, duties, and tasks as- 
signed," Fla Stot. 944275 (1) (1979), replace? the former phrase, "who 
has performed in a faithful, diligent, industrious, orderly, and peaceful 
manner the work, duties, and tasks assigned/ 7 Fla. Stat. 94457 (1) 
(1975) The new version also explicitly adds that the deductions are to be 
made "on a monthly basis, as earned," which appears to codify the pre- 
vious practice. The State Supreme Court assigned no significance to these 
differences in evaluating the ex post facto claim, nor does any party here 
assert that these minor language changes are relevant to our inquiry. 

4 No saving clause limiting the Act's application was included. 1978 
Fla. Laws, ch. 78-304. In applying the new schedule to prisoners like 
petitioner, the Secretary of the Department of Offender Rehabilitation 
relied on the legal opinion of the Attorney General of Florida. Fla. Op. 
Atty. Gen. 07&-96 (1978). 

5 "No State shall . . . pass any ... ex post facto Law." U. S. Const., 
Art. I, 10, cl. 1. The Florida Constitution similarly provides that 
"[n]o . . . ex post facto law . . . shall be passed/' Fla. Const., Art. I, 10. 
See also Fla. Const., Art. X, 9 (forbidding state legislature to enact a 
statute "affect [ing] [the] prosecution or punishment" for any offense pre- 
viously committed). 

6 Petitioner estimated that his "tentative expiration date" under Fla, 
Stat. 944.27 (1975) would be December 31, 1984. App. 15a. The State 
calculated that application of the new gain-time provision starting with 
its effective date resulted in a projected release date of February 2, 1987. 
Id., at 12a-13a. The State does not dispute petitioner's contention that a 
difference of over two years is at stake. 



28 OCTOBER TERM, 1980 

Opinion of the Court 450 U. S 

preme Court summarily denied the petition. 376 So. 2d 855. 
The court relied on its decision in a companion case raising 
the same issue where it reasoned that "gain time allowance is 
an act of grace rather than a vested right and may be with- 
drawn, modified, or denied/' Harris v. Wainwright, 376 So. 
2d 855, 856 (1979). 7 We granted certiorari, 445 TJ. S. 927, 
and we now reverse. 

II 

The ex post facto prohibition 8 forbids the Congress and the 
States to enact any law "which imposes a punishment for an 
act which was not punishable at the time it was committed; 
or imposes additional punishment to that then prescribed." 
Cummings v. Missouri, 4 Wall. 277, 325-326 (1867). See 
Lindsey v. Washington, 301 U. S. 397, 401 (1937); Rooney 
v. North Dakota, 196 U. S. 319, 324-325 (1905) ; In re Med- 
ley, 134 U. S. 160, 171 (1890); Colder v. Bull, 3 Dall. 386, 
390 (1798). Through this prohibition, the Framers sought 
to assure that legislative Acts give fair warning of their effect 
and permit individuals to rely on their meaning until explic- 



7 The Florida court also distinguished cases from other jurisdictions 
striking down retrospective statutes that eliminated the allowance of gain 
time in specified situations, revised the entire scheme of criminal penalties, 
and extended the incarceration of juvenile offenders. 376 So. 2d, at 857 
(distinguishing Dowd v Sims, 229 Ind. 54, 95 N. E. 2d 628 (1950) ; Golds- 
worthy v. Hannifin, 86 Nev. 252, 468 P. 2d 350 (1970) ; In re Dewing, 
19 Gal 3d 54, 560 P. 2d 375 (1977) ; and In re Valenzuela, 275 Cal. App. 
2d 483, 79 Cal. Rptr. 760 (1969)). 

8 U. S. Const., Art. I, 9, cl. 3; Art. I, 10, cl. 1. "So much importance 
did the [Convention attach to [the ex post facto prohibition], that it is 
found twice in the Constitution." Kring v. Missouri, 107 U. S. 221, 227 
(1883). 

9 "The enhancement of a crime, or penalty, seems to come within the 
same mischief as the creation of a crime or penalty" after the fact. 
Colder v. Bull, 3 Ball., at 397 (Paterson, J.). See also Fletcher v. Peck, 
6 Cranch 87, 138 (1810) ("An ex post facto law is one which renders an 
act punishable in a manner in which it was not punishable when it was 
committed") . 



WEAVER v. GRAHAM 29 

24 Opinion of the Court 

itly changed. Dobbert v. Florida, 432 U. S. 282, 298 (1977) ; 
Kring v. Missouri, 107 U. S. 221, 229 (1883) ; Colder v. S^ZZ, 
supra, at 387. The ban also restricts governmental power by 
restraining arbitrary and potentially vindictive legislation. 
Malloy v. South Carolina, 237 U. S. 180, 183 (1915); Kring 
v. Missouri, supra, at 229 ; Fletcher v. Peck, 6 Cranch 87, 138 
(1810) ; Calder v. Bull, supra, at 395, 396 (Paterson, J.) ; the 
Federalist No. 44 (J. Madison), No. 84 (A. Hamilton). 10 

In accord with these purposes, our decisions prescribe that 
two critical elements must be present for a criminal or penal 
law to be ex post facto: it must be retrospective, that is, it 
must apply to events occurring before its enactment, 11 and it 
must disadvantage the offender affected by it. 12 Lindsey v. 
Washington, supra, at 401; Calder v. Bull, supra, at 390. 
Contrary to the reasoning of the Supreme Court of Florida, 
a law need not impair a "vested right" to violate the ex post 
-facto prohibition. 13 Evaluating whether a right has vested 



10 The ex post facto prohibition also upholds the separation of powers 
by confining the legislature to penal decisions with prospective effect and 
the judiciary and executive to applications of existing penal law. Cf. 
Ogden v. Blackledge, 2 Cranch 272, 277 (1804). 

11 See Jaehne v. New York, 128 U. S. 189, 194 (1888) (portion of leg- 
islation void which " 'should endeavor to reach by its retroactive operation 
acts before committed'") (quoting T. Cooley, Constitutional Limitations 
215 (5th ed. 1883)). 

12 We have also held that no ex post facto violation occurs if the change 
effected is merely procedural, and does "not increase the punishment nor 
change the ingredients of the offense or the ultimate facts necessary to 
establish guilt." Hopt v. Utah, 110 TJ. S. 574, 590 (1884). See Dobbert v. 
Florida, 432 U. S. 282, 293 (1977). Alteration of a substantial right, 
however, is not merely procedural, even if the statute takes a seemingly 
procedural form. Thompson v. Utah, 170 U. S. 343, 354-355 (1898); 
Kring v. Missouri, supra, at 232. 

13 In using the concept of vested rights, Harris v. Wainwright, 376 So, 
2d, at 856, the Florida court apparently drew on the test for evaluating 
retrospective laws in a civil context. See 2 C. Sands, Sutherland on Stat- 
utory Construction 41.06 (4th ed. 1973); Hochman, The Supreme Court 



30 OCTOBER TERM, 1980 

Opinion of the Court 450 U. S. 

is important for claims under the Contracts or Due Process 
Clauses, which solely protect pre-existing entitlements. See, 
e. ff., Wood v. Lovett, 313 U. S. 362, 371 (1941); Dodge v. 
Board of Education, 302 U. S. 74, 78-79 (1937). See also 
United States Railroad Retirement Board v. Fritz, 449 U. S. 
166, 174 (1980). The presence or absence of an affirmative, 
enforceable right is not relevant, however, to the ex post 
facto prohibition, which forbids the imposition of punishment 
more severe than the punishment assigned by law when the 
act to be punished occurred. Critical to relief under the Ex 
Post Facto Clause is not an individual's right to less punish- 
ment, but the lack of fair notice and governmental restraint 
when the legislature increases punishment beyond what was 
prescribed when the crime was consummated. Thus, even if 
a statute merely alters penal provisions accorded by the grace 
of the legislature, it violates the Clause if it is both retrospec- 
tive and more onerous than the law in effect on the date of 



and the Constitutionality of Retroactive Legislation, 73 Harv. L. Rev. 692, 
696 (1960); Smead, The Rule Against Retroactive Legislation: A Basic 
Principle of Jurisprudence, 20 Minn. L. Rev. 775, 782 (1936). Discussion 
of vested rights has seldom appeared in ex post facto analysis, as in iden- 
tifying whether the challenged change is substantive rather than proce- 
dural. Hopt v. Utah, supra, at 590. When a court engages in ex post 
facto analysis, which is concerned solely with whether a statute assigns 
more disadvantageous criminal or penal consequences to an act than did 
the law in place when the act occurred, it is irrelevant whether the statu- 
tory change touches any vested rights. Several state courts have properly 
distinguished vested rights from ex post facto concerns. E. g., State v. 
Curtis, 363 So. 2d 1375, 1379, 1382 (La. 1978) ; State ex rel Woodward v. 
Board of Parole, 155 La 699, 700, 99 So. 534, 535-536 (1924) ; Murphy v. 
Commonwealth, 172 Mass. 264, 272, 52 N. E. 505, 507 (1899). 

Respondent here advances several theories that incorporate the vested 
rights approach. For example, respondent defends Fla. Stat. 944.275 
(1) (1979) on the ground that it does not take away any gain time that 
petitioner has already earned. Brief for Respondent 39-40. Although 
this point might have pertinence were petitioner alleging a due process 
violation, see Wolff v. McDonnell, 418 U. S. 539 (1974), it has no rele- 
vance to Ms ex post facto claim. 



WEAVER v. GRAHAM 31 

24 Opinion of the Court 

the offense. 14 We now consider the Florida statute in light 
of these two considerations. 

A 

The respondent maintains that Florida's 1978 law altering 
the availability of gain time is not retrospective because, on its 
face, it applies only after its effective date. Brief for Re- 
spondent 12, 15-16. This argument fails to acknowledge that 
it is the effect, not the form, of the law that determines 
whether it is ex post facto. The critical question is whether 
the law changes the legal consequences of acts completed be- 
fore its effective date. In the context of this case, this ques- 
tion can be recast as asking whether Fla. Stat. 944.275 (1) 
(1979) applies to prisoners convicted for acts committed be- 
fore the provision's effective date. Clearly, the answer is in 
the affirmative. The respondent concedes that the State uses 
944.275 (1), which was implemented on January 1, 1979, to 
calculate the gain time available to petitioner, who was con- 
victed of a crime occurring on January 31, 1976. 16 Thus, the 
provision attaches legal consequences to a crime committed 
before the law took effect. 

Nonetheless, respondent contends that the State's revised 
gain-time provision is not retrospective because its predeces- 
sor was "no part of the original sentence and thus no part of 
the punishment annexed to the crime at the time petitioner 
was sentenced." Brief for Respondent 12. This contention 

14 Durant v. United States, 410 P. 2d 689, 691 (CA1 1969) ; Adkins v. 
Bordenkircher, 262 S, E, 2d 885, 887 (W. Va. 1980); Goldsworthy v. 
Hannifin, 86 Nev., at 256-257, 468 P. 2d, at 352. See Murphy v. Com- 
monwealth, supra, at 272, 52 N. E., at 507. 

15 "The Constitution deals with substance, not shadows. Its inhibition 
was levelled at the thing, not the name. It intended that the rights of the 
citizen should be secure against deprivation for past conduct by legislative 
enactment, under any form, however disguised." Cummings v. Missouri, 
4 Wall. 277, 325 (1867). 

16 See App. 12a-13a (Affidavit, Louie Wainwright, Secretary, Depart- 
ment of Corrections) . 



32 OCTOBER TERM, 1980 

Opinion of the Court 450 U.S. 

is foreclosed by our precedents. First, we need not determine 
whether the prospect of the gain time was in some technical 
sense part of the sentence to conclude that it in fact is one 
determinant of petitioner's prison term and that his effec- 
tive sentence is altered once this determinant is changed. See 
Lindsey v. Washington, 301 TJ. S., at 40H02; Greenfield v. 
Scafati, 277 F. Supp. 644 (Mass. 1967) (three-judge court), 
summarily affd, 390 U. S. 713 (1968). See also Rodriguez v. 
United States Parole Comm'n, 594 F. 2d 170 (CA7 1979) 
(elimination of parole eligibility held an ex post facto viola- 
tion). We have previously recognized that a prisoner's eligi- 
bility for reduced imprisonment is a significant factor enter- 
ing into both the defendant's decision to plea bargain and the 
judge's calculation of the sentence to be imposed. Wolff v. 
McDonnell, 418 U. S. 539, 557 (1974); Warden v. Marrero, 
417 U. S. 653, 658 (1974). See United States v. De Simone, 
468 F. 2d 1196 (CA2 1972) ; Durant v. United States, 410 F. 
2d 689, 692 (CA1 1969). Second, we have held that a statute 
may be retrospective even if it alters punitive conditions out- 
side the sentence. Thus, we have concluded that a statute 
requiring solitary confinement prior to execution is ex post 
facto when applied to someone who committed a capital of- 
fense prior to its enactment, but not when applied only pro- 
spectively. Compare In re Medley, 134 TJ. S. 160 (1890), 
with H olden v. Minnesota, 137 U. S. 483 (1890). See also 
Cummings v. Missouri, 4 Wall. 277 (1867). 17 

17 Even when the sentence is at issue, a law may be retrospective not 
only if it alters the length of the sentence, but also if it changes the 
maximum sentence from discretionary to mandatory. Lindsey v. Washing- 
ton, 301 U. S. 397, 401 (1937). The critical question, as Florida has often 
acknowledged, is whether the new provision imposes greater punishment 
after the commission of the offense, not merely whether it increases a 
criminal sentence. Greene v. State, 238 So. 2d 296 (Fla. 1970) ; Higgin- 
botham v. State, 88 Fla. 26, 31, 101 So. 233, 235 (1924); Herberle v. 
P. R. O Liquidating Co., 186 So. 2d 280, 282 (Fla App. 1966). Thus in 
Dobbert v. Florida, 432 U. S. 282 (1977), we held there was no ex post 



WEAVER v. GRAHAM 33 

24 Opinion of the Court 

For prisoners who committed crimes before its enactment, 
944.275(1) substantially alters the consequences attached 
to a crime already completed, and therefore changes "the 
quantum of punishment." See Dobbert v. Florida, 432 U. S., 
at 293-294. Therefore, it is a retrospective law which can be 
constitutionally applied to petitioner only if it is not to his 
detriment. Id., at 294. 

B 

Whether a retrospective state criminal statute ameliorates 
or worsens conditions imposed by its predecessor is a federal 
question. Lindsey v. Washington, supra, at 400. See Mai- 
loy v. South Carolina, 237 TJ. S., at 184; Rooney v. North 
Dakota, 196 U. S., at 325. The inquiry looks to the chal- 
lenged provision, and not to any special circumstances that 
may mitigate its effect on the particular individual. Dobbert 
v. Florida, supra, at 300; Lindsey v. Washington, supra, at 
401; Rooney v. North Dakota, supra, at 325. 

Under this inquiry, we conclude 944.275 (1) is disadvan- 
tageous to petitioner and other similarly situated prisoners. 
On its face, the statute reduces the number of monthly gain- 
time credits available to an inmate who abides by prison 
rules and adequately performs his assigned tasks. By defini- 
tion, this reduction in gain-time accumulation lengthens the 
period that someone in petitioner's position must spend in 
prison. In Lindsey v. Washington, supra, at 401-402, we 
reasoned that "[i]t is plainly to the substantial disadvantage 
of petitioners to be deprived of all opportunity to receive a 
sentence which would give them freedom from custody 
and control prior to the expiration of the 15-year term." 
Here, petitioner is similarly disadvantaged by the reduced 

facto violation because the challenged provisions changed the role of jury 
and judge in sentencing, but did not add to the "quantum of punishment." 
Id. t at 293-294. In Malloy v. South Carolina, 237 U. S. 180 (1915), we 
concluded that a change in the method of execution was not ex post facto 
because evidence showed the new method to be more humane, not because 
the change in the execution method was not retrospective. Id., at 185. 



34 OCTOBER TERM, 1980 

Opinion of the Court 450 TL S. 

opportunity to shorten his time in prison simply through 
good conduct. In Greenfield v. Scafati, supra, we affirmed 
the judgment of a three-judge District Court which found an 
ex post facto violation in the application of a statute denying 
any gain time for the first six months after parole revocation 
to an inmate whose crime occurred before the statute's enact- 
ment. There, as here, the inmate was disadvantaged by new 
restrictions on eligibility for release. In this vein, the three- 
judge court in Greenfield found "no distinction between de- 
priving a prisoner of the right to earn good conduct deduc- 
tions and the right to qualify for, and hence earn, parole. 
Each . . . materially 'alters the situation of the accused to his 
disadvantage.' " 277 F. Supp., at 646 (quoting In re Med- 
ley, supra, at 171). See also Murphy v. Commonwealth, 172 
Mass. 264, 52 N. E. 505 (1899). 

Respondent argues that our inquiry sh6uld not end at this 
point because Fla. Stat. 944.275(1) (1979) must be ex- 
amined in conjunction with other provisions enacted with it. 
Brief for Respondent 18-26. Respondent claims that the net 
effect of all these provisions is increased availability of- gain- 
time deductions. 18 There can be no doubt that the legisla- 

18 These other provisions permit discretionary grants of additional gain 
time for inmates who not only satisfy the good-conduct requirement, but 
who also deserve extra reward under designated categories. Under 
944.275 (3) (b) (1979), "special gain-time" of 1 to 60 days "may be 
granted" to an "inmate who does some outstanding deed, such as the 
saving of a life or assisting in the recapturing of an escaped inmate." 
Another provision specifies that an inmate "may be granted" one to six 
extra gain-time days per month if he "faithfully performs the assignments 
given to him in a conscientious manner over and above that which may 
normally be expected of him" and also either shows "his desire to be a 
better than average inmate" or "diligently participates in an approved 
course of academic or vocation study." 944.275 (3) (a) . An inmate 
may be awarded up to one gain-time credit for labor evaluated "on the 
basis of diligence of the inmate, the quality and quantity of work per- 
formed, and the skill required for performance of the work." 944.275 
(2) (b). Finally, for inmates unable to qualify under this previous provi- 
sion due to "age, illness, infirmity, or confinement for reasons other than 



WEAVER v. GRAHAM 35 

24 Opinion of the Court 

ture intended through these provisions to promote rehabilita- 
tion and to create incentives for specified productive conduct. 
See Fla. Stat. 944.012 (1979). But none of these provisions 
for extra gain time compensates for the reduction of gain time 
available solely for good conduct. The fact remains that an 
inmate who performs satisfactory work and avoids discipli- 
nary violations could obtain more gain time per month under 
the repealed provision, 944.27(1) (1975), than he could 
for the same conduct under the new provision, 944.275 (1) 
(1979). To make up the difference, the inmate has to satisfy 
the extra conditions specified by the discretionary gain-time 
provisions. 19 Even then, the award of the extra gain time is 
purely discretionary, contingent on both the wishes of the cor- 
rectional authorities and special behavior by the inmate, such 
as saving a life or diligent performance in an academic pro- 
gram. Fla. Stat. 944.275 (3) (a), (b) (1979). In con- 
trast, under both the new and old statutes, an inmate is au- 
tomatically entitled to the monthly gain time simply for 
avoiding disciplinary infractions and performing his assigned 
tasks. Compare Fla. Stat. 944.275 (1) (1979) with 944.27 
(1) (1975). 20 Thus, the new provision constricts the inmate's 

discipline," additional gain time of up to six days per month may be 
granted for "constructive utilization of time." 944.275 (2)(e). 

19 In addition, few of the "new" sources for extra gain time do more 
than reiterate previous opportunities provided by statute or state regula- 
tion. Compare Fla. Stat. 944.275 (3) (a) (1979) with 944,29 (1975) 
("an extra good-time allowance for meritorious conduct or exceptional in- 
dustry") ; Fla. Stat. 944275 (2) (b) (1979) with 944.27 (1975) (au- 
thorizing administrative rules governing additional gam time) and Fla. 
Admin. Code, Rule 10B-20.04 (1) (1975) (gain time for construction labor 
project) ; Fla. Stat. 944.275 (3) (b) (1979) with Rule 10B-20.04 (2) 
(1975) (gam time for outstanding deed). Moreover, under the statute in 
existence when petitioner's crime occurred, the Department of Corrections 
enjoyed greater discretion as to the reasons for awarding extra gain time, 
and as to the amount that could be awarded See 944.29 (1975). 

20 As respondent put it, "all any prisoner had to do ... was to stay out 
of trouble." Brief for Respondent 25. The monthly gain-time provi- 
sion, both at the time of petitioner's offense and now, directed that the 



36 OCTOBER TERM, 1980 

BLACKMTJN, J., concurring in judgment 450 U. S. 

opportunity to earn early release, and thereby makes more 
onerous the punishment for crimes committed before its 
enactment. This result runs afoul of the prohibition against 
ex post -facto laws. 21 _ 

We find Ma. Stat. 944.275 (1) (1979) void as applied to 
petitioner, whose crime occurred before its effective date. We 
therefore reverse the judgment of the Supreme Court of 
Florida and remand this case for further proceedings not in- 
consistent with this opinion." Reverse d and remanded. 

JUSTICE BIACKMTJZST, with whom THE CHIEF JUSTICE joins, 
concurring in the judgment. 

Were the Court writing on a clean slate, I would vote to 
affirm the judgment of the Supreme Court of Florida. My 

Department of Corrections "shall" award gain time to those who obey the 
rules and perform their work satisfactorily. Fla Stat 944.27(1) (1975); 
Fla. Stat. 944275 (1) (1979). The discretionary extra gain time cannot 
fully compensate for the reduced accumulation of gain time for good be- 
havior, for the discretionary credit is more uncertain. Cf. In re Medley, 
134 U. S. 160, 172 (1890) (rejecting nondisclosure of execution date as ex 
post facto increase of uncertainty and mental anxiety) . Moreover, replace- 
ment of mandatory sentence reduction with discretionary sentence reduc- 
tion cannot be permissible in light of Lindsey v. Washington, 301 U. S., at 
401. There, we rejected as an ex post facto violation a legislative change 
from flexible sentencing to mandatory maximum sentencing because the 
retrospective legislation restricted defendants' opportunity to serve less 
than the maximum time in prison. 

21 We need not give lengthy consideration to respondent's claim that the 
challenged statute, Fla. Stat. 944.275(1) (1979), is merely procedural 
because it does not alter the punishment prescribed for petitioner's of- 
fense. Brief for Respondent 13, 17-18. This contention is incorrect, 
given the uncontested fact that the new provision reduces the quantity 
of gain time automatically available, and does not merely alter procedures 
for its allocation. See supra, Part II-A. Respondent's reliance on a gen- 
eral statement of legislative intent unrelated to the gain-time provision, see 
Brief for Respondent 17 (citing Fla. Stat. 944.012 (6) (1979)), is also 
unpersuasive. 

22 The proper relief upon a conclusion that a state prisoner is being 



WEAVER v. GRAHAM 37 

24 REHNQTJIST, J., concurring in judgment 

thesis would be: (a) the 1978 Florida statute operates only 
prospectively and does not affect petitioner's credits earned 
and accumulated prior to the effective date of the statute; 
(b) "good time" or "gain time" is something to be earned and 
is not part of, or inherent in, the sentence imposed; (c) all 
the new statute did was to remove some of petitioner's hope 
and a portion of his opportunity; and (d) his sentence there- 
fore was not enhanced by the statute. In addition, as the 
Court's 18th footnote reveals, ante, at 34-35, the statutory 
change by no means was entirely restrictive; in certain re- 
spects it was more lenient, as the Court's careful preservation 
for this prisoner of the new statute's other provisions clearly 
implies. Ante, at 36 and this page, n. 22. 

The Court's precedents, however, particularly Lindsey v. 
Washington, 301 U. S. 397 (1937), and the summary disposi- 
tion of Greenfield v. Scafati, 277 F. Supp. 644 (Mass. 1967), 
aff'd, 390 TL S. 713 (1968), although not warmly persuasive 
for me, look the other way, and I thus must accede to the 
judgment of the Court. 

JUSTICE REHNQUIST, concurring in the judgment. 

I find this case a close one. As the Court recently noted: 
"It is axiomatic that for a law to be ex post facto it must be 
more onerous than the prior law." Dobbert v. Florida, 432 
U. S. 282, 294 (1977). Petitioner was clearly disadvantaged 
by the loss of the opportunity to accrue gain time through 
good conduct pursuant to the 5-10-15 formula when the legis- 
lature changed to a 3-6-9 formula. The new statute, how- 
ever, also afforded petitioner opportunities not available 



treated under an ex post facto law is to remand to permit the state court 
to apply, if possible, the law in place when his crime occurred. See 
Lindsey v. Washington, supra, at 402, In re Medley, supra, at 173. 
In remanding for this relief, we note that only the ex post facto portion 
of the new law is void as to petitioner, and therefore any severable provi- 
sions which are not ex post facto may still be applied to him. See 2 
C. Sands, Sutherland on Statutory Construction 44.04 (4th ed. 1973). 



38 OCTOBER TERM, 1980 

REHNQTTIST, J., concurring in judgment 450 U.S. 

under prior law to earn additional gain time beyond the good- 
conduct formula.* The case is not resolved simply by com- 
paring the 5-10-15 formula with the 3-6-9 formula. "We 
must compare the two statutory procedures in toto to deter- 
mine if the new may be fairly characterized as more onerous." 
Ibid. 

I am persuaded in this case, albeit not without doubt, that 
the new statute is more onerous than the old, because the 
amount of gain time which is accrued automatically solely 
through good conduct is substantially reduced, and this re- 
duction is not offset by the availability of discretionary awards 
of gain time for activities extending beyond simply "staying 
out of trouble." This is not to say, however, that no reduc- 
tion in automatic gain time, however slight, can ever be offset 
by increases in the availability of discretionary gain time, how- 
ever great, or that reductions in the amount of credit for good 
conduct can never be offset by increases in the availability of 
credit which can be earned by more than merely good conduct. 

Since the availability of new opportunities for discretion- 
ary gain time and the reduction in the amount of automatic 
gain time can be viewed as a total package, it must be empha- 

*While the Court points out that gain time was available under the old 
scheme beyond the 5-10-15 formula, ante, at 35, n. 19, I am not convinced 
that the new sources simply "reiterate [d]" opportunities previously availa- 
ble. There is, for example, no dispute that several of the new sources of 
gain time have no analogues in the previous statutory or administrative 
scheme. See, e. g., Fla. Stat. 944575 (2)(e) (1979) (up to six days of 
gain time per month because of age, illness, infirmity, or confinement for 
reasons other than discipline) ; 944.275 (3) (a) (up to six days per 
month for Inmates who diligently participate in an approved course of 
academic or vocational study). Other new statutory provisions which 
had only administrative counterparts improved substantially on the avail- 
ability of gain time. For example, under the old administrative system, 
an inmate could receive from 1 to 15 days of gain time per month for 
constructive labor, Fla. Admin. Code, Rule 10B-20.04 (1) (1975), while 
under the new statutory scheme, an inmate can receive up to 1 day of 
gain time for every day of constructive labor, Fla. Stat. 944.275 (2) (b) 
(1979). 



WEAVER v. GRAHAM 39 

24 RBHNQUIST, J,, concurring in judgment 

sized that nothing in today's decision compels Florida to pro- 
vide prisoners in petitioner's position with the benefits of the 
new provisions when this Court has held that Florida may not 
require such prisoners to pay the price. It is not at all clear 
that the Florida Legislature would have intended to make 
available the new discretionary gain time to. prisoners earn- 
ing automatic gain time under the old 5-10-15 formula, when 
the legislature in fact reduced the 5-10-15 formula when it 
enacted the new provisions. The question is, of course, one 
for Florida to resolve. 



40 OCTOBER TERM, 1980 

Opinion of the Court 450 U.S. 

HUDSON v. LOUISIANA 

CERTIORARI TO THE SUPREME COURT OF LOUISIANA 
No. 79-5688. Argued December 1, 1980 Decided February 24, 1981 

Held: Louisiana violated the Double Jeopardy Clause by prosecuting 
petitioner a second time for first-degree murder after the judge at the 
first trial granted petitioner's motion for new trial on the ground that 
the evidence was legally insufficient to support the jury's guilty verdict. 
This case is controlled by Burks v. United States, 437 U. S. 1 (decided 
before the Louisiana Supreme Court affirmed petitioner's conviction 
after the second trial), which held that "the Double Jeopardy Clause 
precludes a second trial once the reviewing court has found the evidence 
legally insufficient" to support the guilty verdict. Id., at 18. Burks is 
not to be read as holding that double jeopardy protections are violated 
only when the prosecution has adduced no evidence at all of the crime 
or an element thereof. The record does not support the State's conten- 
tion that the trial judge granted a new trial only because, as a "13th 
juror/' he entertained personal doubts about the verdict and would have 
decided it differently from the other 12 jurors. The record shows 
instead that he granted the new trial because the State had failed to 
prove its case as a matter of law. Pp. 42-46, 

373 So. 2d 1294, reversed. 

POWELL, J., delivered the opinion for a unanimous Court. 

Richard O. Burst, Sr., argued the cause and filed a brief for 
petitioner. 

James M. Butters, argued the cause and filed a brief for 
respondent.* 

JUSTICE POWELL delivered the opinion of the Court. 

The question in this case is whether Louisiana violated the 
Double Jeopardy Clause, as we expounded it in Burks v. 
United States, 437 U. S. 1 (1978), by prosecuting petitioner a 
second time after the trial judge at the first trial granted peti- 

*Quin Denvir and Laurance S. Smith filed a brief for the State Public 
Defender of Palifornia as amicus curiae. 



HUDSON v. LOUISIANA 41 

40 Opinion of the Court 

tioner's motion for new trial on the ground that the evidence 
was insufficient to support the jury's verdict of guilty. 



Petitioner Tracy Lee Hudson was tried in Louisiana state 
court for first-degree murder, and the jury found him guilty. 
Petitioner then moved for a new trial, which under Louisiana 
law was petitioner's only means of challenging the sufficiency 
of the evidence against him. 1 The trial judge granted the 
motion, stating: "I heard the same evidence the jury did[;] 
I'm convinced that there was no evidence, certainly not evi- 
dence beyond a reasonable doubt, to sustain the verdict of the 
homicide committed by this defendant of this particular vic- 
tim." The Louisiana Supreme Court denied the State's ap- 

1 Louisiana's Code of Criminal Procedure does not authorize trial judges 
to enter judgments of acquittal in jury trials. La Code Cmn Proc. Ann., 
Art. 778 (West Supp. 1980) ; State v. Henderson, 362 So. 2d 1358, 1367 
(La. 1978). Accordingly, a criminal defendant's only means of challenging 
the sufficiency of evidence presented against him to a jury is a motion for 
new trial under La. Code Crim. Proc. Ann., Art. 851 (West 1967 and 
Supp. 1980), which provides in pertinent part: 

"The Court, on motion of the defendant, shall grant a new trial 
whenever: 

"(1) The verdict is contrary to the law and the evidence; 

"(2) The court's ruling on a written motion, or an objection made 
during the proceedings, shows prejudicial error; 

"(3) New and material evidence that, notwithstanding the exercise of 
reasonable diligence by the defendant, was not discovered before or during 
the trial, is available, and if the evidence had been introduced at the trial 
it would probably have changed the verdict or judgment of guilty; 

"(4) The defendant has discovered, since the verdict or judgment of 
guilty, a prejudicial error or defect in the proceedings that, notwithstanding 
the exercise of reasonable diligence by the defendant, was not discovered 
before the verdict or judgment; or 

"(5) The court is of the opinion that the ends of justice would be 
served by the granting of a new trial, although the defendant may not be 
entitled to a new trial as a matter of strict legal right/' 
We think it clear that the trial judge in this case acted under paragraph 
(1) in granting a new trial. See infra, at 43. 



42 OCTOBER TERM, 1980 

Opinion of the Court 450 U.S. 

plication for a writ of certiorari. State v. Hudson, 344 So. 
2d 1 (1977). 

At petitioner's second trial, the State presented an eyewit- 
ness whose testimony it had not presented at the first trial. 
The second jury also found petitioner guilty. The Louisiana 
Supreme Court affirmed the conviction. State v. Hudson, 361 
So. 2d 858 (1978). 

Petitioner then sought a writ of habeas corpus in a Loui- 
siana state court, contending that the Double Jeopardy Clause 
barred the State from trying him the second time. Petitioner 
relied on our decision in Burks 2 that "the Double Jeopardy 
Clause precludes a second trial once the reviewing court has 
found the evidence legally insufficient" to support the guilty 
verdict. 437 U. S., at 18. 3 The trial court denied a writ, and 
the Louisiana Supreme Court affirmed. 373 So. 2d 1294 
(1979). The Supreme Court read Burks to bar a second trial 
only if the court reviewing the evidence whether an appel- 
late court or a trial court determines that there was no evi- 
dence to support the verdict. Because it believed that the 
trial judge at petitioner's first trial had granted petitioner's 
motion for new trial on the ground that there was insufficient 
evidence to support the verdict, although some evidence, the 
Louisiana Supreme Court concluded that petitioner's second 
trial was not precluded by the Double Jeopardy Clause. 

We granted a writ of certiorari, 445 U. S. 960 (1980), and 
we now reverse. 

n 

We considered in Burks the question "whether an accused 
may be subjected to a second trial when conviction in a prior 
trial was reversed by an appellate court solely for lack of suffi- 

2 We decided Burks before the Louisiana Supreme Court entered its 
judgment affirming petitioner's conviction. 

8 Burks involved a federal prosecution, but the Court held in Greene v. 
Massey, 437 U. S. 19, 24 (1978), that the double jeopardy principle in 
Burks fully applies to the States. See Bentan v. Maryland, 395 II. S. 784 
(1969); Crist v. Brett, 437 U. S. 28 (1978). 



HUDSON v. LOUISIANA 43 

40 Opinion of the Court 

cient evidence to sustain the jury's verdict," 437 U. S., at 2. 
We held that a reversal "due to a failure of proof at trial," 
where the State received a "fair opportunity to offer whatever 
proof it could assemble/' bars retrial on the same charge. Id., 
at 16. We .also held that it makes "no difference that the 
reviewing court, rather than the trial court, determined the 
evidence to be insufficient," id., at 11 (emphasis in original), 
or that "a defendant has sought a new trial as one of his 
remedies, or even as the sole remedy." Id., at 17. 

Our decision in Burks controls this case, for it is clear that 
petitioner moved for a new trial on the ground that the evi- 
dence was legally insufficient to support the verdict and that 
the trial judge granted petitioner's motion on that ground. 
In the hearing on the motion, petitioner's counsel argued to 
the trial judge that "the verdict of the jury is contrary to the 
law and the evidence." After reviewing the evidence put 
to the jurors, the trial judge agreed with petitioner "that there 
was no evidence, certainly not evidence beyond a reasonable 
doubt, to sustain the verdict"; and he commented: "[H]ow 
they concluded that this defendant committed the act from 
that evidence when no weapon was produced, no proof of any- 
one who saw a blow struck, is beyond the Court's comprehen- 
sion." The Louisiana Supreme Court recognized that the 
trial judge granted the new trial on the ground that the evi- 
dence was legally insufficient. The Supreme Court described 
the trial judge's decision in these words: "[T]he trial judge 
herein ordered a new trial pursuant to LSA-C. Cr. P. art. 851 
(1) solely for lack of sufficient evidence to sustain the jury's 
verdict . . . ." 373 So. 2d, at 1298 (emphasis in original). 
This is precisely the circumstance in which Burks precludes 
retrials. 437 U. S., at 18. See Greene v. Massey, 437 TJ. S. 
19, 24^26 (1978) ; id., at 27 (POWELL, J., concurring). Noth- 
ing in Burks suggests, as the Louisiana Supreme Court 
seemed to believe, that double jeopardy protections are vio- 
lated only when the prosecution has adduced no evidence at 
all of the crime or an element thereof. 



44 OCTOBER TERM, 1980 

Opinion of the Court 450 U. S. 

The State contends that Burks does not control this case. 
As the State reads the record, the trial judge granted a new 
trial only because he entertained personal doubts about the 
verdict. According to the State, the trial judge decided that 
he, as a "13th juror/' would not have found petitioner guilty 
and he therefore granted a new trial even though the evidence 
was not insufficient as a matter of law to support the verdict. 4 
The State therefore reasons that Burks does not preclude a 
new trial in such a case, for the new trial was not granted 
"due to a failure of proof at trial." 437 U. S., at 16. 

This is not such a case, as the opinion of the Louisiana Su- 
preme Court and the statements of the trial judge make 
clear. The trial judge granted the new trial because the State 
had failed to prove its case as a matter of law, not merely be- 
cause he, as a "13th juror/' would have decided it differently 
from the other 12 jurors. 5 Accordingly, there are no signifi- 



4 The State's contention here adopts the reasoning of Justice Tate's con- 
curring opinion in the Louisiana Supreme Court. Justice Tate wrote: 
"[The trial judge] did not grant a new trial for a reason that he did not 
think the state had produced sufficient evidence to prove guilt, but rather 
because he himself (to satisfy his doubts not the jury's, which had con- 
cluded otherwise) had personal doubts that the evidence was sufficient to 
prove guilt beyond a reasonable doubt. Commendably and conscien- 
tiously, he therefore ordered a new trial .... 

"The present is not an instance where the state did not prove its case 
at the first trial, so that granting a new trial gave the state a second 
chance to produce enough evidence to convict the accused. If so, as the 
majority notes, re-trial offends constitutional double jeopardy." 373 So. 
2d, at 1298 (emphasis in original). 

5 Whether a state trial judge in a jury trial may assess evidence as a 
"13th juror 1 ' is a question of state law. Compare People v. Noga, 196 
Colo. 478, 480, 586 P. 2d 1002, 1003 (1978) ; State v. Bowie, 318 So. 2d 
407, 408 (Fla. App. 1975), with Veitch v Superior Court, 89 Cal. App, 3d 
722, 730-731, 152 Cal. Rptr 822, 827 (1979); People v. Ramos, 33 App. 
Div. 2d 344, 347, 308 N. Y. S. 2d 195, 197-198 (1970). Justice Tate's con- 
curring opinion for the Louisiana Supreme Court suggests that Louisiana 
law allows trial judges to act as "13th jurors." We do not decide whether 
the Double Jeopardy Clause would have barred Louisiana from retrying 



HUDSON v. LOUISIANA 45 

40 Opinion of the Court 

cant facts which distinguish this case from Burks* and the 
Double Jeopardy Clause barred the State from prosecuting 
petitioner a second time, 

III 

The judgment of the Louisiana Supreme Court is reversed. 

It is so ordered. 



petitioner if the trial judge had granted a new trial in that capacity, for 
that is not the case before us. We note, however, that Burks precludes re- 
trial where the State has failed as a matter of law to prove its case 
despite a fair opportunity to do so. Supra, at 43. By definition, a new 
trial ordered by a trial judge acting as a "13th juror" is not such a case. 
Thus, nothing in Burks precludes retrial in such a case. 

6 The Louisiana Supreme Court did not find it significant that the trial 
judge, rather than an appellate court, held the State's evidence to be in- 
sufficient to sustain the jury's verdict: "While the case at bar involves 
the granting of a motion for new trial by the trial court for insufficient 
evidence rather than review at the appellate level, we deem the same 
principles are applicable to both." 373 So. 2d, at 1297. The State does 
not contest this conclusion. 



46 OCTOBER TERM, 1980 

Syllabus 450 U.S. 

BOARD OF GOVERNORS OF FEDERAL RESERVE 
SYSTEM v. INVESTMENT COMPANY INSTITUTE 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE 
DISTRICT OF COLUMBIA CIRCUIT 

No. 79-927. Argued October 15, 1980 Decided February 24, 1981 

Section 4 (c) (8) of the Bank Holding Company Act authorizes the Federal 
Reserve Board (Board) to allow bank holding companies to acquire or 
retain ownership in companies whose activities are "so closely related 
to banking or managing or controlling banks as to be a proper incident 
thereto " In 1972, the Board amended its Regulation Y, and issued an 
interpretive ruling in connection therewith, enlarging the category of 
activities that it would regard as "closely related to banking" under 
4 (c) (8) by permitting bank holding companies and their nonbanking 
subsidiaries to act as an investment adviser to a closed-end investment 
company. Section 16 of the Banking Act of 1933 (Glass-Steagall Act) 
prohibits a bank from "underwriting" any issue of a security or pur- 
chasing any security for its own account, and 21 of that Act prohibits 
any organization "engaged in the business of issuing, underwriting, sell- 
ing, or distributing" securities from engaging in banking. Respondent 
trade association of open-end investment companies, in proceedings be- 
fore the Board and on direct review in the Court of Appeals, challenged, 
on the basis of the Glass-Steagall Act, the Board's authority to deter- 
mine that investment adviser services are "closely related" to banking. 
While rejecting respondent's argument that Regulation Y, as amended, 
violated the Glass-Steagall Act, the Court of Appeals nevertheless held 
that 4 (c) (8) of the Bank Holding Company Act did not authorize the 
regulation because the activities that it permitted were not consistent 
with the congressional intent in both of these Acts to effect as complete 
a separation as possible between the securities and commercial banking 
businesses* 

Held: The amendment to Regulation Y does not exceed the Board's statu- 
tory authority. Pp. 56-78. 

(a) The Board's determination that services performed by an invest- 
ment adviser for a closed-end investment company are "so closely re- 
lated to banking ... as to be a proper incident thereto" is supported not 
only by the normal practice of banks in performing fiduciary functions in 
various capacities but also by a normal reading of the language of 
4 (c) (8) . And the Board's determination of what activities are 



BOARD OF GOVS., FRS v. INVESTMENT COMPANY INST. 47 
46 Syllabus 

"closely related" to banking is entitled to the greatest deference. Pp. 
55-58. 

(b) Investment adviser services by a bank do not necessarily violate 
either 16 or 21 of the Glass-Steagall Act. The Board's interpretive 
ruling here prohibits a bank holding company or its subsidiaries from 
participating in the "sale or distribution" of, or from purchasing, securi- 
ties of any investment company for which it acts as an investment 
adviser. Thus, if such restrictions are followed, investment advisory 
services even if performed by a bank would not violate 16% re- 
quirements. And the management of a customer's investment portfolio 
is not the kind of selling activity contemplated in the prohibition in 21, 
which was intended to require securities firms, such as underwriters or 
brokerage houses, to sever their banking connections. In any event, 
even if the Glass-Steagall Act did prohibit banks from acting as invest- 
ment advisers, that prohibition would not necessarily preclude the Board 
from determining that such adviser services would be permissible under 
4(c)(8). Pp. 58-64. 

(c) Since the interpretive ruling issued with the amendment to Regu- 
lation Y prohibits a bank holding company acting as an investment 
adviser from issuing, underwriting, selling, or redeeming securities, Regu- 
lation Y, as amended, avoids the potential hazards involved in any 
association between a bank affiliate and a closed-end investment com- 
pany. Cf Investment Company Institute v. Camp, 401 U. S. 617. 
Pp. 64-68. 

(d) Regulation Y, as amended, is consistent with the legislative his- 
tory of both the Bank Holding Company Act and the Glass-Steagall Act. 
More specifically, such legislative history indicates that Congress did not 
intend the Bank Holding Company Act to limit the Board's discretion 
to approve seciirities-related activity as closely related to banking 
beyond the prohibitions already contained in the Glass-Steagall Act. 
Pp. 68-78. 

196 U. S. App. D. C. 97, 606 F. 2d 1004, reversed. 

STEVENS, J., delivered the opinion of the Court, in which all other Mem- 
bers joined, except STEWART and REHJNTQTTIST, JJ., who took no part in the 
consideration or decision of the case, and POWELL, J., who took no part in 
the decision of the case. 

Stephen M. Shapiro argued the cause for petitioner. With 
him on the briefs were Solicitor General McCree, Assistant 
Attorney General Daniel, Anthony /. Steinmeyer, and Neal L. 
Petersen. 



48 OCTOBER TERM, 1980 

Opinion of the Court 450 TJ. S. 

G. Duane Vieth argued the cause for respondent. With 
him on the briefs was Leonard H. Becker.* 

JUSTICE STEVENS delivered the opinion of the Court. 

In 1956 Congress enacted the Bank Holding Company 
Act to control the future expansion of bank holding com- 
panies and to require divestment of their nonbanking inter- 
ests. 1 The Act, however, authorizes the Federal Reserve 
Board (Board) to allow holding companies to acquire or re- 
tain ownership in companies whose activities are "so closely 
related to banking or managing or controlling banks as to be 
a proper incident thereto." 2 In 1972 the Board amended its 



^William H. Smith, Keith A. Jones, Alan B. Levenson, Daniel F. Kolb, 
Geoffrey S. Stewart, Arnold M. Lerman, Michael L. Burack, and Edward 
T. Hand filed a brief for the American Bankers Association et al. as 
amid curiae urging reversal. 

Briefs of amid curiae urging affirmance were filed by Roger A. Clark, 
John M. Lijtin, and Donald J. Crawford for the Securities Industry Asso- 
ciation; and by Harvey L. Pitt, James H. Schropp, and Randy A. Harris 
for A. G. Becker Inc. 

1 The stated purpose of the Bank Holding Company Act of 1956 was 
"[t]o define bank holding companies, control their future expansion, and 
require divestment of their nonbanking interests." 70 Stat. 133. 

2 Section 4 of the statute, as originally enacted, provided in pertinent 
part: 

"(a) Except as otherwise provided in this Act, no bank holding company 
shall 

"(1) after the date of enactment of this Act acquire direct or indirect 
ownership or control of any voting shares of any company which is not a 
bank. . . . 



"(c) The prohibitions in this section shall not apply 

"(6) to shares of any company all the activities of which are of a finan- 
cial, fiduciary, or insurance nature and which the Board after due notice 
and hearing, and on the basis of the record made at such hearing, by order 
has determined to be so closely related to the business of banking or of 
managing or controlling banks as to be a proper incident thereto and as 



BOARD OF GOVS., FES v. INVESTMENT COMPANY INST. 49 
46 Opinion of the Court 

regulations to enlarge the category of activities that it would 
regard as "closely related to banking' 3 and therefore per- 
missible for bank holding companies and their nonbanking 
subsidiaries. Specifically, the Board determined that the 
services of an investment adviser to a closed-end investment 
company may be such a permissible activity. The question 
presented by this case is whether the Board had the statutory 
authority to make that determination. 

The Board's determination, which was implemented by an 
amendment to its "Regulation Y," permits bank holding 
companies and their nonbanking subsidiaries to act as an 
investment adviser as that term is defined by the Investment 
Company Act of 1940. 3 Although the statutory definition 



to make it unnecessary for the prohibitions of this section to apply in 
order to carry out the purposes of this Act . . . ." 70 Stat. 135-137. 
The relevant exemption is now found in 4 (c) (8) which allows holding 
company ownership of: 

" (8) shares of any company the activities of which the Board after due 
notice and opportunity for hearing has determined (by order or regula- 
tion) to be so closely related to banking or managing or controlling banks 
as to be a proper incident thereto. In determining whether a particular 
activity is a proper incident to banking or managing or controlling banks 
the Board shall consider whether its performance by an affiliate of a hold- 
ing company can reasonably be expected to produce benefits to the public, 
such as greater convenience, increased competition, or gains in efficiency, 
that outweigh possible adverse effects, such as undue concentration of re- 
sources, decreased or unfair competition, conflicts of interests, or unsound 
banking practices. In orders and regulations under this subsection, the 
Board may differentiate between activities commenced de novo and activi- 
ties commenced by the acquisition, in whole or in part, of a going con- 
cern." 12 TJ. S. C. 1843 (c) (8). 

3 See 36 Fed. Reg. 16695, 17514 (1971) ; 37 Fed. Reg. 1463 (1972) ; 12 
CFR 225.4 (a) (5) (ii) (1980). The 1972 amendment to Regulation Y 
made the following addition to the list of permissible activities: 
"(ii) serving as investment adviser, as defined in section 2 (a) (20) of the 
Investment Company Act of 1940, to an investment company registered 
under that Act." 



50 OCTOBER TERM, 1980 

Opinion of the Court 450 U. S. 

is a detailed one, 4 the typical relationship between an invest- 
ment adviser and an investment company can be briefly 
described. Investment companies, by pooling the resources 
of small investors under the guidance of one manager, provide 
those investors with diversification and expert management. 5 
Investment advisers generally organize and manage invest- 
ment companies pursuant to a contractual arrangement with 
the company. 6 In return for a management fee, the adviser 



4 The definition of an investment adviser in (2) (a) (20) of the In- 
vestment Company Act of 1940 reads as follows: 

"(20) 'Investment adviser' of an investment company means (A) any 
person (other than a bona fide officer, director, trustee, member of an 
advisory board, or employee of such company, as such) who pursuant to 
contract with such company regularly furnishes advice to such company 
with respect to the desirability of investing in, purchasing or selling securi- 
ties or other property, or is empowered to determine what securities or 
other property shall be purchased or sold by such company, and (B) any 
other person who pursuant to contract with a person described in clause 
(A) of this paragraph regularly performs substantially all of the duties 
undertaken by such person described in said clause (A) ; but does not in- 
clude (i) a person whose advice is furnished solely through uniform publi- 
cations distributed to subscribers thereto, (ii) a person who furnishes only 
statistical and other factual information, advice regarding economic factors 
and trends, or advice as to occasional transactions in specific securities, but 
without generally furnishing advice or making recommendations regarding 
the purchase or sale of securities, (iii) a company furnishing such services 
at cost to one or more investment companies, insurance companies, or other 
financial institutions, (iv) any person the character and amount of whose 
compensation for such services must be approved by a court, or (v) such 
other persons as the Commission may by rules and regulations or order 
determine not to be within the intent of this definition." 15 U. S. C. 
80a-2 (20). 

5 1 T. Frankel, The Regulation of Money Managers, I-A, 2, p. 6 
(1978). 

6 Id., at I-B, 4, pp, 9-10; see Wharton School Study of Mutual Funds, 
H. R. Rep. No. 2274, 87th Cong., 2d Sess., 467-477 (1962) (hereinafter 
Wharton School Study); Burks v. Laaker, 441 TJ. S. 471, 480-481 (1979). 



BOARD OF GOVS., FRS v. INVESTMENT COMPANY INST. 51 
46 Opinion of the Court 

selects the company's investment portfolio and supervises 
most aspects of its business. 7 

The Board issued an interpretive ruling in connection with 
its amendment to Regulation Y. That ruling distinguished 
"open-end" investment companies (commonly referred to as 
"mutual funds") from "closed-end" investment companies. 
The ruling explained that "a mutual fund is an investment 
company, which, typically, is continuously engaged in the issu- 
ance of its shares and stands ready at any time to redeem 
the securities as to which it is the issuer; a closed-end invest- 
ment company typically does not issue shares after its initial 
organization except at infrequent intervals and does not stand 
ready to redeem its shares." 8 Because open-end investment 
companies will redeem their shares, they must constantly 
issue securities to prevent shrinkage of assets. 9 In contrast, 
the capital structure of a closed-end company is similar to that 
of other corporations; if its shareholders wish to sell, they 
must do so in the marketplace. Without any obligation to 
redeem, closed-end companies need not continuously seek new 
capital. 10 



7 Securities and Exchange Commission Report on the Public Policy 
Implications of Investment Company Growth, H. R, Rep. No. 2337, 89th 
Cong., 2d Sess, 8 (1966). 

8 12 CFR 225.125 (c) (1980). 

9 Hearings on S. 3580 before a Senate Subcommittee on Banking and 
Currency, 76th Cong., 3d Sess., 43 (1940) (hereinafter 1940 Senate Hear- 
ings) (statement of Robert E. Healy) . As the SEC Report on the Public 
Policy Implications of Investment Company Growth recognized with re- 
spect to open-end funds: 

"Since there will always be some shareholders who want to sell, an open- 
end company must comply with continuous demands for cash from 
selling stockholders. To offset the resulting cash outflow and because 
of the strong incentives for growth created by the structure of the indus- 
try, the managers of virtually all open-end companies vigorously promote 
sales of new shares at all times." H. R. Rep. No. 2337, supra, at 42-43. 
10 /d., at 42. 



52 OCTOBER TERM, 1980 

Opinion of the Court 450 U. S. 

The Board's interpretive ruling expressed the opinion that 
a bank holding company may not lawfully sponsor, organize, 
or control an open-end investment company, 11 but the Board 
perceived no objection to sponsorship of a closed-end invest- 
ment company provided that certain restrictions are ob- 
served. 12 Among those restrictions is a requirement that the 
investment company may not primarily or frequently engage 
in the issuance, sale, and distribution of securities; a require- 
ment that the investment adviser may not have any owner- 
ship interest in the investment company, or extend credit to 
it; and a requirement that the adviser may not underwrite 
or otherwise participate in the sale or distribution of the 
investment company's securities. 18 



11 The ruling would apparently permit a bank holding company to pro- 
vide investment advice to an open-end investment company if the holding 
company does not have the authority to make investment decisions or 
otherwise to control investments of such an advisee Respondent has not 
specifically challenged the legality of a relationship that is purely advisory 
in character. 

12 "(f) In the Board's opinion, the Glass-Steagall Act provisions, as inter- 
preted by the U. S. Supreme Court, forbid a bank holding company to 
sponsor, organize or control a mutual fund. However, the Board does not 
believe that such restrictions apply to closed-end investment companies as 
long as such companies are not primarily or frequently engaged in the 
issuance, sale and distribution of securities." 12 CFR 225.125 (f) (1980) 

13 Pertinent parts of the interpretive ruling read as follows: 

"In no case, however, should a bank holding company act as investment 
adviser to an investment company which has a name that is similar to, or 
a variation of, the name of the holding company or any of its subsidiary 
banks. 

"(g) In view of the potential conflicts of interests that may exist, a bank 
holding company and its bank and nonbank subsidiaries should not 
(1) purchase for their own account securities of any investment company 
for which the bank holding company acts as investment adviser; (2) pur- 
chase in their sole discretion, any such securities in a fiduciary capacity 
(including as managing agent) ; (3) extend credit to any such investment 
company; or (4) accept the securities of any such investment company as 



BOARD OF GO VS., FRS v. INVESTMENT COMPANY INST. 53 
46 Opinion of the Court 

Respondent Investment Company Institute, a trade asso- 
ciation of open-end investment companies, commenced this 
litigation challenging as in excess of the Board's statutory 
authority the determination that investment adviser services 
are "closely related" to banking. Both in proceedings before 
the Board and in a direct review proceeding in the United 
States Court of Appeals for the District of Columbia Circuit, 
respondent based this challenge on the Banking Act of 1933, 
commonly known as the Glass-Steagall Act, in which Con- 
gress placed restrictions on the securities-related business of 
banks in order to protect their depositors. 14 

The Court of Appeals rejected respondent's argument that 
Regulation Y, as amended, violated the Glass-Steagall Act, 
relying on the fact that the prohibitions of 16 and 21 of 



collateral for a loan which is for the purpose of purchasing securities of 
the investment company. 

"(h) A bank holding company should not engage, directly or indirectly, 
in the sale or distribution of securities of any investment company for 
which it acts as investment adviser. Prospectuses or sales literature 
should not be distributed by the holding company, nor should any litera- 
ture be made available to the public at any offices of the holding com- 
pany. In addition, officers and employees of bank subsidiaries should be 
instructed not to express any opinion with respect to advisability of pur- 
chase of securities of any investment company for which the bank holding 
company acts as investment adviser. Customers of banks in a bank hold- 
ing company system who request information on an unsolicited basis re- 
garding any investment company for which the bank holding company 
acts as investment adviser may be furnished the name and address of the 
fund and its underwriter or distributing company, but the names of bank 
customers should not be furnished by the bank holding company to the 
fund or its distributor. Further, a bank holding company should not act 
as investment adviser to a mutual fund which has offices in any building 
which is likely to be identified in the public's mind with the bank holding 
company." 12 CFR 225.125 (f), (g), (h) (1980). 

14 The stated purpose of the 1933 Act was "[t]o provide for the safer 
and more effective use of the assets of banks, to regulate interbank control, 
to prevent the undue diversion of funds into speculative operations, and 
for other purposes." 48 Stat. 162. 



54 OCTOBER TERM, 1980 

Opinion of the Court 450 IT. S. 

that Act 15 apply only to banks rather than to bank holding 
companies or their nonbanking subsidiaries. 196 U. S. App. 
D. C. 97, 606 F. 2d 1004. The court nevertheless concluded 
that 4(c)(8) of the Bank Holding Company Act did not 
authorize the regulation. The court reasoned that the legis- 
lative history of the Act demonstrates that Congress did not 
intend the Bank Holding Company Act to restrict the scope 
of the Glass-Steagall Act. Because the court read the legis- 
lative history to indicate that Congress perceived the Glass- 
Steagall Act as an effort to effect as complete a separation as 
possible between the securities business and the commercial 
banking business, the court read a similar intent into the 
Bank Holding Company Act. The Court of Appeals believed 
that activities permitted by the challenged regulation were 
not consistent with the congressional intent to effect this 
separation. 

We granted certiorari because of the importance of the 
Court of Appeals holding. 444 U. S. 1070. We are persuaded 



15 Section 16, as originally enacted, provided in pertinent part: 
"The business of dealing in investment securities by [a national bank] shall 
be limited to purchasing and selling such securities without recourse, solely 
upon the order, and for the account of, customers, and in no case for its 
own account, and [a national bank] shall not underwrite any issue of se- 
curities: Provided, That [a national bank] may purchase for its own ac- 
count investment securities under such limitations and restrictions as the 
Comptroller of the Currency may by regulation prescribe . . . ." 48 Stat. 
184. 

Section 16, as amended, is now codified at 12 U. S. C. 24 (Seventh). 
Section 21, provides, in pertinent part, that it is unlawful 
"[f]or any person, firm, corporation, association, business trust, or other 
similar organization, engaged in the business of issuing, underwriting, sell- 
ing, or distributing, at wholesale or retail, or through syndicate participa- 
tion, stocks, bonds, debentures, notes, or other securities, to engage at the 
same time to any extent whatever in the business of receiving deposits 
subject to check or to repayment upon presentation of a passbook, cer- 
tificate of deposit, or other evidence of debt, or upon request of the de- 
positor . . . ." 48 Stat. 189, 12 U. S. C. 378. 



BOARD OF GOVS., FRS v. INVESTMENT COMPANY INST. 55 
46 Opinion of the Court 

that the language of both the Bank Holding Company Act 
and the Glass-Steagall Act, as well as our interpretation of 
the Glass-Steagall Act in Investment Company Institute v. 
Camp, 401 TJ. S. 617 (1971), supports the Board. Moreover, 
contrary to the view of the Court of Appeals, we are per- 
suaded that the regulation is consistent with the legislative 
history of both statutes. 

I 

The services of an investment adviser are not significantly 
different from the traditional fiduciary functions of banks. 
The principal activity of an investment adviser is to manage 
the investment portfolio of its advisee to invest and rein- 
vest the funds of the client. Banks have engaged in that 
sort of activity for decades. 16 As executor, trustee, or man- 
aging agent of funds committed to its custody, a bank regu- 
larly buys and sells securities for its customers. Bank trust 
departments manage employee benefits trusts, institutional 
and corporate agency accounts, and personal trust and agency 
accounts. 17 Moreover, for over 50 years banks have per- 
formed these tasks for trust funds consisting of commingled 
funds of customers. 18 These common trust funds adminis- 



16 A memorandum submitted to the Board on behalf of the American 
Bankers Association states, in part: "For well over a century, banks and 
trust companies in every state have managed and administered custom- 
ers' investment funds in the form of trusts, estates and agency accounts." 
4pp. 20. The accuracy of that statement is not challenged. 

17 See Securities Exchange Commission Institutional Investor Study Re- 
port Summary, H. R. Doc. No. 92-64, pt. 8, pp. 34-35 (1971). 

18 As we recognized in Investment Company Institute v. Camp, 401 
U. S. 617 (1971) : 

"National banks were granted trust powers in 1913. Federal Reserve Act, 
11, 38 Stat. 261. The first common trust fund was organized in 1927, 
and such funds were expressly authorized by the Federal Reserve Board 
by Regulation F promulgated in 1937, Report on Commingled or Com- 
mon Trust Funds Administered by Banks and Trust Companies, H. R. 
Doc. No. 476, 76th Cong., 2d Sess., 4-5 (1939). For at least a generation, 



56 OCTOBER TERM, 1980 

Opinion of the Court 450 TT. S. 

tered by banks would be regulated as investment companies 
by the Investment Company Act of 1940 were they not 
exempted from the Act's coverage. 19 The Board's conclusion 
that the services performed by an investment adviser are "so 
closely related to banking ... as to be a proper incident 
thereto" is therefore supported by banking practice and by a 
normal reading of the language of 4 (c)(8). 20 

The Board's determination of what activities are "closely 
related" to banking is entitled to the greatest deference. 21 



therefore, there has been no reason to doubt that a national bank can, con- 
sistently with the banking laws, commingle trust funds on the one hand, 
and act as a managing agent on the other. No provision of the banking 
law suggests that it is improper for a national bank to pool trust assets, 
or to act as a managing agent for individual customers, or to purchase 
stock for the account of its customers." Id., at 624-625. 
See also Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 
307-308 (1950). 

19 See 15 U. S. C. 80a-3 (c) (3). As David Schenker, an attorney for 
the SEC, explained at the 1940 Senate Hearings: "We have exempted any 
common trust fund .... Those common trust funds are a sort of invest- 
ment trust in which trustees can participate, and they are managed by 
banks and trust companies." 1940 Senate Hearings, at 181. 

20 The normal reading of the language of 4 (c) (8) takes on additional 
significance in light of the fact, recognized by the Court of Appeals, that 
the legislative history of the section provides no real guidance as to the 
scope of the exception contained therein. 196 U. S. App. D C. 97, 110, 
606 F. 2d 1004, 1017 

21 Commenting on an interpretation of the Glass-Steagall Act by the 
Board in Board of Governors v. Agnew, 329 U. S. 441 (1947), Justice 
Rutledge observed: 

"Not only because Congress has committed the system's operation to their 
hands, but also because the system itself is a highly specialized and technical 
one, requiring expert and coordinated management in all its phases, I 
think their judgment should be conclusive upon any matter which, like 
this one, is open to reasonable difference of opinion. Their specialized 
experience gives them an advantage judges cannot possibly have, not only 
m dealing with the problems raised for their discretion by the system's 
working, but also in ascertaining the meaning Congress had in mind in 
prescribing the standards by which they should administer it. Accordingly 



BOARD OF GOVS , FRS v. INVESTMENT COMPANY INST. 57 
46 Opinion of the Court 

Such deference is particularly appropriate in this case because 
the regulation under attack is merely a general determination 
that investment advisory services which otherwise satisfy 
the restrictions imposed by the Board's interpretive ruling 
constitute an activity that is so closely related to banking as 
to be a proper incident thereto. 22 Because the authority for 
any specific investment advisory relationship must be pre- 
ceded by a further determination by the Board that the rela- 
tionship can be expected to provide benefits for the public, 
the Board will have the opportunity to ensure that no bank 
holding company exceeds the bounds of a bank's traditional 
fiduciary function of managing customers' accounts. 23 Thus 



their judgment in such matters should be overturned only where there is 
no reasonable basis to sustain it or where they exercise it in a manner 
which clearly exceeds their statutory authority/* Id., at 450. 
See also Board of Governors v. First Lincolnwood Corp , 439 TJ. S. 234, 
248 (1978). 

22 A determination by the Board that a particular service is closely re- 
lated to banking does not end the Board's role. A bank holding company 
must submit a specific application with respect to each service it wishes 
to perform. The Board then determines on the basis of the circumstances 
of each applicant whether the proposed activity would serve the public 
interest See 12 CFR 2254 (a) (1980) ; H. R. Conf. Rep No. 91-1747, 
p. 22 (1970) ; NCNB Corp. v. Board of Governors, 599 F. 2d 609, 610-611 
(CA4 1979). If a bank holding company wishes to acquire or retain 
shares of a company engaged in an activity already approved as "closely 
related," the Board publishes notice of the application in the Federal Reg- 
ister for public comment on the "public benefits" issue. 12 CFR 225 4 
(b)(2) (1980). 

23 The Senate Report on the Bank Holding Company Act indicated the 
importance of the role of the Board in determining what activities would 
be permitted under 4 (c) (8) : 

"[T]here are many other activities of a financial, fiduciary, or insurance 
nature which cannot be determined to be closely related to banking without 
a careful examination of the particular type of business carried on under 
such activity. For this reason your committee deems it advisable to pro- 
vide a forum before an appropriate Federal authority in which decisions 
concerning the relationship of such activities to banking can be determined 



58 OCTOBER TERM, 1980 

Opinion of the Court 450 U.S. 

unless the Glass-Steagall Act requires a contrary conclusion, 
the Board's interpretation of the plain language of the Bank 
Company Holding Act must be upheld. 

II 

Respondent's principal attack on the Board's general de- 
termination that investment adviser services are so closely 
related as to be a proper incident to banking proceeds from 
the premise that if such services were performed by a bank, 
the bank would violate 16 and 21 of the Glass-Steagall 
Act. 24 Respondent therefore argues that such services may 

in each case on its merits." S Rep No. 1095, 84th Cong., 1st Sess., pt. 1, 
p. 13 (1955) (hereinafter 1955 Senate Report). 

The legislative history of the Bank Holding Company Act Amendments 
of 1970 indicated that the Amendments were not intended to cut back on 
the discretion afforded the Board. As Senator Bennett, a member of the 
Conference Committee, indicated, the 1970 Amendments maintained "maxi- 
mum flexibility for the Federal Reserve Board to determine the activities 
in which a bank holding company and its subsidiaries may engage . . . ." 
116 Cong. Rec. 42432 (1970). See n. 58, infra. 

2 * See n. 15, supra. We agree with the Court of Appeals that 16 and 
21 apply only to banks and not to bank holding companies. Section 21 
prohibits firms engaged m the securities business from also receiving 
deposits. Bank holding companies do not receive deposits, and the lan- 
guage of 21 cannot be read to include within its prohibition separate 
organizations related by ownership with a bank, which does receive de- 
posits. As the following colloquy, cited by the Court of Appeals, between 
Senator Glass, cosponsor of the bill, and Senator Robinson indicates, the 
drafters of the bill agreed with this construction : 

"Mr. GLASS. . . . Here [ 21] we prohibit the large private banks, 
whose chief business is investment business, from receiving deposits. We 
separate them from the deposit banking business. 

"Mr. ROBINSON of Arkansas. That means if they wish to receive de- 
posits they must have separate institutions for that purpose? 

"Mr. GLASS. Yes" 77 Cong. Rec. 3730 (1933). 

Section 16, which prohibits a national bank from "underwriting" any issue 
of a security, by its terms applies only to banks. Although respondent 
contended here and in the Court of Appeals that the bank and its hold- 



BOARD OF GOVS,, FRS v. INVESTMENT COMPANY INST 59 
46 Opinion of the Court 

never be regarded as a "proper incident" that could be per- 
formed by a bank affiliate. 25 We reject both the premise 
and the conclusion of this argument. The performance of 



ing company should be treated as a single entity for purposes of applying 
16 and 21, the structure of the Glass-Steagall Act indicates to the con- 
trary. Sections 16 and 21 flatly prohibit banks from engaging in the 
underwriting business Organizations affiliated with banks, however, are 
dealt with by other sections of the Act. Section 19 (e), 48 Stat. 188, re- 
pealed in pertinent part, 80 Stat. 242, prohibited bank holding com- 
panies from voting the shares of a bank subsidiary unless the holding com- 
pany divested itself of any interest in a subsidiary formed for the purpose 
of or "engaged principally" in the issuance or underwriting of securities. 
More importantly, 20 of the Act, 48 Stat. 188, prohibits national banks 
or state bank members of the Federal Reserve System from owning securi- 
ties affiliates, defined in 2 (b), 48 Stat. 162, that are "engaged principally" 
in the issuance or underwriting of securities. Thus the structure of the 
Act reveals a congressional intent to treat banks separately from their 
affiliates. The reading of the Act urged by respondent would render 20 
meaningless 

25 Respondent also argues that the regulation authorizes banks as well 
as bank holding companies and nonbank subsidiaries to act as investment 
advisers. The operative definition of "bank holding company" in the 
Board's interpretive ruling includes "their bank and nonbank subsidiaries." 
12 CFR 225.125 (c) (1980). Respondent contends that banks have re- 
lied on the interpretive ruling as authorization for them to sponsor invest- 
ment companies. Brief for Respondent 13-18. The simple answer to this 
argument is that not only does the interpretive ruling confer no authori- 
zation to undertake any activities, but also the Board does not have the 
power to confer such authorization on banks. As the Board's opinion in 
this case stated: 

"[T]he Board's regulation was adopted pursuant to section 4 (c) (8) of 
the Bank Holding Company Act and authorizes investment advisory activ- 
ity to be conducted by a nonbanking subsidiary of the holding company. 
The authority of national banks or state member banks to furnish invest- 
ment advisory services does not derive from the Board's regulation; such 
authority would exist independently of the Board's regulation and its scope 
is to be determined by a particular bank's primary supervisory agency." 
App. to Pet. for Cert 61a. 

Thus the regulation applies only to bank holding companies. Although 
the interpretive ruling applies to banks, that ruling contains only restric- 



60 OCTOBER TERM, 1980 

Opinion of the Court 450 U. S. 

investment advisory services by a bank would not necessarily 
violate 16 or 21 of the Glass-Steagall Act. Moreover, 
bank affiliates may be authorized to engage in certain activi- 
ties that are prohibited to banks themselves. 26 



tions on the activity permitted by the regulation. The Board's opinion 
explained that the restrictions contained in the interpretive ruling were 
intended to apply to banks when the investment advisory function was per- 
formed by a holding company or its nonbanking subsidiaries. Ibid. This 
imposition of restrictions on banks prevented bank holding companies and 
their nonbanking subsidiaries from evading the restrictions by allowing 
subsidiary banks to perform the restricted activities. Whether banks 
are mistakenly relying on the Board's interpretive ruling to derive per- 
mission to act as investment advisers is not relevant to the determination 
of the Board's power to enact the challenged regulation We do note 
that at the time of the Court of Appeals decision, the Board represented 
that no bank had sought the Board's approval for an investment adviser 
service that is a prerequisite to acting pursuant to Board authority. See 
196 U. S App. D C., at 107, n. 26, 606 F 2d, at 1014, n. 26. Thus 
although in the discussion to foUow we refer to bank affiliation with invest- 
ment companies, this reference is only for purposes of addressing respond- 
ent's argument that banks would violate the Glass-Steagall Act by serving 
as investment advisers to closed-end investment companies. 

26 Respondent also contends that the Board's regulation violates 20 of 
the Glass-Steagall Act The Court of Appeals did not consider the 20 
argument, but the respondent has submitted this contention to answer 
the Board's argument that 20 is the only relevant section of the Glass- 
Steagall Act for purposes of determining what services bank holding com- 
panies may provide. Section 20 provides in pertinent part: 
"[N]o [national bank] shall be affiliated . . . with any corporation, asso- 
ciation, business trust or other similar organization engaged principally in 
the issue, flotation, underwriting, public sale, or distribution at wholesale 
or retail or through syndicate participation of stocks, bonds, debentures, 
notes or other securities." 48 Stat. 188, 12 U. S. C. 377. 
Although "affiliate" as originally defined in 2 (b) of the Glass-Steagall 
Act did not include holding companies, see 48 Stat. 162, Congress in 1966 
amended the statute to bring holding companies within the definition of 
"affiliate" and thereby within the reach of 20. 80 Stat. 242, 12 U. S. C. 
221a (b)(4). In Board of Governors v. Agnew, 329 U. S. 441 (1947), 
the Court recognized the difference in the extent of prohibition of 
securities-related activities reflected in the use of the word "engaged" 



BOARD OF GOVS., FES v. INVESTMENT COMPANY INST. 61 
46 Opinion of the Court 

It is familiar history that the Glass-Steagall Act was en- 
acted in 1933 to protect bank depositors from any repetition 
of the widespread bank closings that occurred during the 
Great Depression. 27 Congress was persuaded that specula- 
tive activities, partially attributable to the connection be- 
tween commercial banking and investment banking, had con- 
tributed to the rash of bank failures. 28 The legislative 
history reveals that securities firms affiliated with banks had 

in 21 as opposed to the use of the words "engaged principally" in 
20. Thus a less stringent standard should apply to determine whether 
a holding company has violated 20 than is applied to a determination 
of whether a bank has violated 16 and 21. Nevertheless, the Board's 
regulation goes beyond the less stringent standard by prohibiting any 
involvement by the bank holding company or its subsidiaries in the 
underwriting or selling of the securities of the investment company. 
Moreover, the distinction here between closed-end and open-end invest- 
ment companies is crucial. If, as respondent contends, the closed-end 
company's initial issuance of stock were sufficient to render the company 
"principally engaged" in the issuance of securities, then all corporations, 
including banks, would at some point be engaged principally in the 
issuance of securities. We cannot accept this premise. Moreover, given 
our rejection of this premise, it follows that the investment adviser to 
such a company is clearly not engaged principally in the issuance of 
securities. To a certain extent, our conclusions infra with respect to 16 
and 21 subsume the argument that the regulation is inconsistent with 20. 

27 Representative Steagall, cosponsor of the bill, stated in debate* 
"[T]he purpose of this legislation is to protect the people of the United 
States in the right to have banks in which their deposits will be safe. 
They have a right to expect of Congress the establishment and maintenance 
of a system of banks in the United States where citizens may place their 
hard earnings with reasonable expectation of being able to get them out 
again upon demand." 77 Cong. Rec. 3837 (1933). 

This purpose is also reflected by the fact that a major portion of the Act, 
around which most of the debate by both Houses centered, was the cre- 
ation of the Federal Deposit Insurance Corporation. See 48 Stat. 168-180. 

28 S. Rep. No. 77, 73d Cong., 1st Sess., 6, 10 (1933) (hereinafter 1933 
Senate Report). Representative Koppleman stated in debate: "One of the 
chief causes of this depression has been the diversion of depositors' moneys 
into the speculative markets of Wall Street/' 77 Cong. Rec. 3907 (1933). 
See also id., at 3835 (remarks of Rep. Steagall). 



62 OCTOBER TERM, 1980 

Opinion of the Court 450 U. S. 

engaged in perilous underwriting operations, stock speculation, 
and maintaining a market for the bank's own stock, often 
with the bank's resources. 29 Congress sought to separate na- 
tional banks, as completely as possible, from affiliates engaged 
in such activities. 30 

Sections 16 and 21 of the Glass-Steagall Act approach the 
legislative goal of separating the securities business from the 
banking business from different directions. The former 
places a limit on the power of a bank to engage in securities 
transactions; the latter prohibits a securities firm from en- 
gaging in the banking business. Section 16 expressly pro- 
hibits a bank from "underwriting" any issue of a security or 
purchasing any security for its own account. The Board's 
interpretive ruling here expressly prohibits a bank holding 
company or its subsidiaries from participating in the "sale 
or distribution" of securities of any investment company for 
which it acts as investment adviser. 12 CFR 225.125 (h) 
(1980). The ruling also prohibits bank holding companies 
and their subsidiaries from purchasing securities of the in- 
vestment company for which it acts as investment adviser. 
225.125 (g). 31 Therefore, if the restrictions imposed by the 
Board's interpretive ruling are followed, investment advisory 
services even if performed by a bank would not violate the 
requirements of 16. 

We are also satisfied that a bank's performance of such 
services would not necessarily violate 21. In contrast to 
16, 21 prohibits certain kinds of securities firms from 
engaging in banking. The 21 prohibition applies to any 
organization "engaged in the business of issuing, underwrit- 
ing, selling, or distributing" securities. Such a securities firm 
may not engage at the same time "to any extent whatever in 

29 1933 Senate Report, at 10. See also 77 Cong. Rec. 3835 (1933) (re- 
marks of Rep. Steagall); id, at 4179, 4180 (remarks of Sen. BuUdey). 

30 1933 Senate Report, at 10 See also 77 Cong. Rec. 3835 (1933) (re- 
marks of Rep. Steagall) ; id, at 4179, 4180 (remarks of Sen. Bulkley). 

31 See n. 13, supra. 



BOARD OF GOVS , PRS v. INVESTMENT COMPANY INST. 63 
46 Opinion of the Court 

the business of receiving deposits." The management of a 
customer's investment portfolio even when the manager has 
the power to sell securities owned by the customer is not the 
kind of selling activity that Congress contemplated when it 
enacted 21. If it were, the statute would prohibit banks 
from continuing to manage investment accounts in a fiduciary 
capacity or as an agent for an individual. We do not believe 
Congress intended that such a reading be given 21. 32 
Rather, 21 presented the converse situation of 16 and was 
intended to require securities firms such as underwriters or 
brokerage houses to sever their banking connections. It 
surely was not intended to require banks to abandon an ac- 
cepted banking practice that was subjected to regulation 
under 16. 33 

Even if we were to assume that a bank would violate the 
Glass-Steagall Act by engaging in certain investment advisory 



32 The statutory prohibition in 21 applies to firms "engaged in the 
business of issuing, underwriting, selling, or distributing at wholesale or 
retail, or through syndicate participation, stocks, bonds, debentures, notes, 
or other securities . . ."; that is hardly the sort of language that would 
be used to describe an investment adviser. Compare the statutory defini- 
tion of an investment adviser quoted in n. 4, supra. 

38 Section 21 originally prohibited firms "engaged principally" in the 
business of issuing securities from receiving deposits. Senator Bulkley 
introduced an amendment striking the word "principally" because "[i]t 
has become apparent that at least some of the great investment houses are 
engaged in so many forms of business that there is some doubt as to 
whether the investment business is the principal one" 77 Cong Rec. 
4180 (1933). This amendment indicates the type of institution which 
Congress focused upon in 21. Senator Glass, in discussing the effect that 
21 would have upon the credit supply, indicated that "[i]f we confine 
to their proper business activities these large private concerns whose prin- 
cipal business is that of dealing in investment securities, . . and many 
of which unloaded millions of dollars of worthless investment securities 
upon the banks of this country, and deny them the right to conduct the 
deposit bank business at the same time, there will be no difficulty on the 
face of the globe in financing any business enterprise that needs to be 
financed at a profit in this country." 77 Cong. Rec. 4179 (1933). 



64 OCTOBER TERM, 1980 

Opinion of the Court 450 TJ. S. 

services, it would not follow that a bank holding company 
could never perform such services. In both the Glass- 
Steagall Act itself and in the Bank Holding Company Act, 
Congress indicated that a bank affiliate may engage in activi- 
ties that would be impermissible for the bank itself. Thus, 
21 of Glass-Steagall entirely prohibits the same firm from 
engaging in banking and in the underwriting business, whereas 
20 does not prohibit bank affiliation with a securities firm 
unless that firm is "engaged principally" in activities such as 
underwriting. 34 Further, 4(c)(7)of the Bank Holding Com- 
pany Act, which authorizes holding companies to purchase 
and own shares of investment companies, permits investment 
activity by a holding company that is impermissible for a 
bank itself. 35 Finally, inasmuch as the Bank Holding Com- 
pany Act requires divestment only of nonbanking interests, 
the 4(c)(8) exception would be unnecessary if it applied 
oijly to services that a bank could legally perform. Thus 
even if the Glass-Steagall Act did prohibit banks from acting 
as investment advisers, that prohibition would not necessarily 
preclude the Board from determining that such adviser serv- 
ices would be permissible under 4 (c)(8). 

In all events, because all that is presently at issue is the 
Board's preliminary authorization of such services, rather than 
approval of any specific advisory relationship, speculation 
about possible conflicts with the Glass-Steagall Act is plainly 
not a sufficient basis for totally rejecting the Board's carefully 
considered determination. 

Ill 

Our conclusions with respect to the Glass-Steagall Act are 
in no way altered by consideration of our decision in Invest- 

34 See nn. 15, 26, supra. 

35 See 12 U. S. C. 1843 (c) (7). Section 4 (c) (7) even permits a bank 
holding company to own a controlling interest in an investment company, 
and 4 (a) (2) permits a holding company to provide management services 
to companies in which it has a controlling interest. See 12 U. S. C. 1843 
(a) (2). 



BOARD OF GOVS., FRS v INVESTMENT COMPANY INST. 65 
46 Opinion of the Court 

ment Company Institute v. Camp, 401 U. S. 617 (1971). The 
Court there held that a regulation issued by the Comptroller 
of the Currency purporting to authorize banks to operate 
mutual funds violated 16 and 21 of the Glass-Steagall Act. 
The mutual fund under review in that case was the functional 
equivalent of an open-end investment company. 36 Because 
the authorization at issue in this case is expressly limited to 
closed-end investment companies, the holding in Camp is 
clearly not dispositive. Respondent argues, however, that 
both the Court's reasoning in Camp and its description of the 
"more subtle hazards" created by the performance of invest- 
ment advisory services by a bank are inconsistent with the 
Board's action. We disagree. 

In Camp the Court relied squarely on the literal language 
of 16 and 21 of the Glass-Steagall Act. After noting that 
16 prohibited the underwriting by a national bank of any 
issue of securities and the purchase for its own account of 
shares of stock of any corporation, and that 21 prohibited 
corporations from both receiving deposits and engaging in 
issuing, underwriting, selling, or distributing securities, the 
Court recognized that the statutory language plainly applied 
to a bank's sale of redeemable and transferable "units of par- 
ticipation" in a common investment fund operated by the 
bank. 401 U. S., at 634. Because the Court held that the 
bank was the underwriter of the fund's units of participation 
within the meaning of the Investment Company Act of 1940, 

3<s It was described as follows: 

"Under the plan the bank customer tenders between $10,000 and 
$500,000 to the bank, together with an authorization making the bank the 
customer's managing agent. The customer's investment is added to the 
fund, and a written evidence of participation is issued which expresses in 
'units of participation' the customer's proportionate interest in fund assets. 
Units of participation are freely redeemable, and transferable to anyone 
who has executed a managing agency agreement with the bank. The 
fund is registered as an investment company under the Investment Com- 
pany Act of 1940, The bank is the underwriter of the fund's units of 
participation within the meaning of that Act." 401 U. S., at 622-623. 



66 OCTOBER TERM, 1980 

Opinion of the Court 450 U. S. 

id., at 622-623, the Comptroller attempted to avoid the reach 
of 16 by arguing that the units of participation were not 
"securities" within the meaning of the Glass-Steagall Act. 
The Court's contrary determination led inexorably to the con- 
clusion that 16 had been violated. 

This case presents an entirely different issue. No one 
could dispute the fact that the shares in a closed-end invest- 
ment company are securities. But as we have indicated, such 
securities are not issued, sold, or underwritten by the invest- 
ment adviser. In contrast to the bank's activities in issuing, 
underwriting, selling, and redeeming the units of participation 
in the Camp case, in this case the Board's interpretive ruling 
expressly prohibits such activity. 37 

The Court in Camp recognized that in enacting the Glass- 
Steagall Act, Congress contemplated other hazards in addition 
to the danger of banks using bank assets in imprudent se- 
curities investments. 38 But none of these "more subtle haz- 



37 Moreover, the decision by an investment adviser to purchase or sell 
securities on behalf of a closed-end investment company is critically differ- 
ent from the comparable decision by the operator of the mutual fund re- 
viewed in Camp When an adviser makes a change in the securities 
portfolio of a closed-end company, the adviser is acting for the account of 
its customer not for its own account. In Camp, however, the securities 
in the portfolio of the mutual fund were at least arguably the property of 
the bank itself and therefore the bank was arguably acting for its own 
account within the meaning of 16. 

38 The Court recognized that because the bank and its affiliate would 
be closely associated in the public mind, public confidence in the bank 
might be impaired if the affiliate performed poorly. Further, depositors 
of the bank might lose money on investments purchased in reliance 
on the relationship between the bank and its affiliate. The pressure on 
banks to prevent this loss of public confidence could induce the bank to 
make unsound loans to the affiliate or to companies in whose stock the 
affiliate has invested. Moreover, the association between the commercial 
and investment bank could result in the commercial bank's reputation 
for prudence and restraint being attributed, without justification, to an 
enterprise selling stocks and securities. Furthermore, promotional con- 
siderations might induce banks to make loans to customers to be used 



BOARD OF GOVS , FRS v. INVESTMENT COMPANY INST. 67 
46 Opinion of the Court 

ards" would be present were a bank to act as an investment 
adviser to a closed-end investment company subject to the 
restrictions imposed by the Board. Those restrictions would 
prevent the bank from extending credit to the investment 
company and would also preclude the promotional pressures 
that are inherent in the investment banking business. 39 In 
addition to the fact that the bank could not underwrite or 
sell the stock of the closed-end investment company, that 
company, unlike a mutual fund, would not be constantly in- 
volved in the search for new capital to cover the redemption 
of other stock. The advisory fee earned by the bank would 
provide little incentive to the bank or its holding company 
to engage in promotional activities. 40 



for the purchase of stocks and might impair the ability of the commercial 
banker to render disinterested advice. 401 IT. S., at 630-634. 

39 The bank could not stray from its obligation to render impartial ad- 
vice to its customers by promoting the fund, because the interpretive ruling 
prohibits a bank from giving the names of its depositors to the invest- 
ment company. 12 CFR 225.125 (h) (1980) ; see n. 13, supra. Further, 
the bank could not act as investment adviser to any investment company 
having a similar name; prospectuses and sales literature of the investment 
company could not be distributed by the bank; officers and employees 
of the bank could not express an opinion with respect to the advisability 
of the purchase of securities of the investment company, and the invest- 
ment company could not locate its offices in the same building as the bank. 
Ibid. These restrictions would prevent to a large extent the association 
in the public mind between the bank and the investment company, as well 
as the resulting connection between public confidence in the bank and the 
fortunes of the investment company. Although this association cannot be 
completely obliterated, we do note that the performance of the large 
trust funds operated by banks is routinely published. See American 
Banker, Sept. 2, 1980, pp. 1, 10, 16. The Securities Exchange Act of 1934 
requires disclosure of information about the securities portfolios of com- 
mon trust funds that have a portfolio with an aggregate value of at 
least $100 million. 15 U. S. C. 78m (f ) ; 17 CFR 240.13f-l (1980). 

40 The advisory fee is the adviser's consideration for managing the in- 
vestment company. In 1962 the Wharton School Study of Mutual Funds 
indicated that the advisory fee charged by advisers to open-end funds 



68 OCTOBER TERM, 1980 

Opinion of the Court 450 U. S. 

Our obligation to accord deference to the Board's interpre- 
tive ruling provides added support to our conclusion that the 
Board's regulation avoids the potential hazards involved in 
any association between a bank affiliate and a closed-end 
investment company. In Camp the Court emphasized that 
the Comptroller of the Currency had provided no guidance as 
to the effect of the Glass-Steagall Act on the proposed ac- 
tivity. 41 Whereas in Camp the Court was deprived of admin- 
istrative "expertise that can enlighten and rationalize the 
search for the meaning and intent of Congress/' 401 U. S., at 
628, in this case the regulatory action by the Board recognized 
and addressed the concerns that led to the enactment of the 
Glass-Steagall Act. Contrary to respondent's argument, the 
Camp decision therefore affirmatively supports the Board's 
action in this case. 

IV 

The Court of Appeals rested its conclusion that the Board 
had exceeded its statutory authority on a review of the legis- 
lative history of 4(c)(8). As originally enacted in 1956 
the section referred to activities "closely related to the busi- 
ness of banking." In 1970, when the Act was amended to 



was typically one-half of one percent of the value of the fund's assets. 
Wharton School Study, at 484. The amount of the advisory fee earned 
by the adviser to a closed-end company increases only if the value of the 
investment portfolio increases. In contrast, the fee of the adviser to a 
mutual fund increases both with the increase in value of the invest- 
ment portfolio and through the sale of the company's shares. SEC 
Report of Special Study of Securities Markets, H. R. Doc. No. 95, 88th 
Cong., 1st Sess., pt. 4, pp. 204r-205, 96-99 (1963). The fee paid by the 
closed-end company would provide scant incentive to a bank to risk its 
assets by making unwise loans to companies whose stock is held by the 
investment company. 

41 The Court stated: 

"The difficulty here is that the Comptroller adopted no expressly articu- 
lated position at the administrative level as to the meaning and impact 
of the provisions of 16 and 21 as they affect bank investment funds." 
401 U. S., at 627. 



BOARD OF GOVS., FRS v. INVESTMENT COMPANY INST. 69 
46 Opinion of the Court 

extend its coverage to holding companies controlling just one 
bank, the words "business of" were deleted from 4 (c)(8), 
thereby making the section refer merely to activities "closely 
related to banking." The conclusion of the Court of Appeals 
did not, however, place special reliance on this modest change. 
Rather, the Court of Appeals was persuaded that in 1956 
Congress believed that the Glass-Steagall Act had been en- 
acted in 1933 to "divorc[e] investment from commercial 
banking" and that the 1970 amendment to 4 (c) (8) did not 
alter the intent expressed by the 1956 Congress. 196 U. S. 
App. D. C., at 110, 606 F. 2d, at 1017. 

Congress did intend the Bank Holding Company Act to 
maintain and even to strengthen Glass-Steagairs restrictions on 
the relationship between commercial and investment banking. 
Part of the motivation underlying the requirement that bank 
holding companies divest themselves of nonbanking interests 
was the desire to provide a measure of regulation missing 
from the Glass-Steagall Act. 42 In 1956, the only provision 
of the Glass-Steagall Act which regulated bank holding com- 
panies was 19 (e) of the Act, which provided that a bank 
holding company could not obtain a permit from the Federal 
Reserve Board entitling it to vote the shares of a bank sub- 
sidiary unless it agreed to divest itself within five years of 
any interest in a company formed for the purpose of, or 
"engaged principally 5 ' in, the issuance or underwriting of 
securities. 43 This provision was largely ineffectual, because 

42 1955 Senate Report, at 2. See also H. R. Rep. No. 609, 84th Cong., 
1st Sess, 16 (1955) (hereinafter 1955 House Report). 

43 Section 19 (e) provided in pertinent part: 

"Every such holding company affiliate shall, in its application for such 
voting permit, (1) show that it does not own, control, or have any interest 
in, and is not participating in the management or direction of, any corpora- 
tion, business trust, association, or other similar organization formed for 
the purpose of, or engaged principally in, the issue, flotation, underwriting, 
public sale, or distribution, at wholesale or retail or through syndicate 
participation, of stocks, bonds, debentures, notes, or other securities of any 
sort (hereinafter referred to as 'securities company 1 ); (2) agree that 



70 OCTOBER TERM, 1980 

Opinion of the Court 450 TJ. S. 

bank holding companies were not subject to the divestiture 
requirement as long as they did not vote their bank subsidiary 
shares. 44 Thus bank holding companies were able to avoid 
Glass-SteagalFs general purpose of separating as completely 
as possible commercial from investment banking in a way not 
available to other bank affiliates or banks themselves. The 
inadequacy of 19 (e) therefore lay not in the type of affilia- 
tion with securities-related firms permitted to bank holding 
companies but in the ability of holding companies to avoid 
any restrictions on affiliation by simply not voting their 
shares. To the extent that Congress strengthened the Glass- 
Steagall Act, it did so by closing this loophole rather than by 
imposing further restrictions on the permissible securities- 
related business of bank affiliates. 45 The clear evidence of a 



during the period that the permit remains in force it will not acquire any 
ownership, control, or interest in any such securities company or participa- 
tion in the management or direction thereof; (3) agree that if, at the 
time of filing the application for such permit, it owns, controls, or has an 
interest, in, or is participating in the management or direction of, any 
such securities company, it will, within five years after the filing of such 
application, divest itself of its ownership, control, and interest in such 
securities company and will cease participating in the management or 
direction thereof, and will not thereafter, during the period that the per- 
mit remains in force, acquire any further ownership, control, or interest 
in any such securities company or participate in the management or 
direction thereof . . . ." 48 Stat. 188. 

The "engaged principally" standard is the same standard as is contained 
in 20 of the Glass-Steagall Act. Section 19 (e) also required bank hold- 
ing companies to divest themselves of shares of companies "formed for 
the purpose of" the issuance or underwriting of securities. We do not 
view this language as prohibiting securities-related activities that would 
not also be prohibited by the "engaged principally" standard. All com- 
panies formed for the purpose of issuing or underwriting securities would 
surely meet the "engaged principally" test. 

44 1955 Senate Report, at 2; see S. Rep. No. 1179, 89th Cong., 2d Sess., 
12 (1966) (hereinafter 1966 Senate Report). 

45 The Senate Report to the Bank Holding Company Act indicated that 
as of December 31, 1954, only 18 holding companies had obtained voting 
permits for bank shares from the Board. The Board estimated that 46 



BOARD OF GOVS , FRS v. INVESTMENT COMPANY INST. 71 
46 Opinion of the Court 

congressional purpose in 1956 to remedy the inadequacy of 
19 (e) of the 1933 Act does not support the conclusion that 
Congress also intended 4 (c) (8) to be read as totally pro- 
hibiting bank holding companies from being "engaged" in any 
securities-related activities; on the contrary it is more accu- 
rately read as merely completing the job of severing the 
connection between bank holding companies and affiliates 
"principally engaged" in the securities business. 46 

To invalidate the Board's regulation, the Court of Appeals 
had to assume that the activity of managing investments for 
a customer had been regarded by Congress as an aspect of 
investment banking rather than an aspect of commercial 
banking. But the Congress that enacted the Glass-Steagall 
Act did not take such an expansive view of investment bank- 
ing. 47 Investment advisers and closed-end investment com- 
panies are not "principally engaged" in the issuance or the 
underwriting of securities within the meaning of the Glass- 
Steagall Act, even if they are so engaged within the meaning 
of 16 and 2 1. 48 Nothing in the legislative history of the 
Bank Holding Company Act persuades us that Congress in 
1956 intended to effect a more complete separation between 
commercial and investment banking than the separation that 
the Glass-Steagall Act had achieved with respect to banks in 
16 and 21 and had sought unsuccessfully to achieve with 
respect to bank holding companies in 19 (e). 49 



bank holding companies would be subjected to regulation by the Bank 
Holding Company Act. 1955 Senate Report, at 2. 

46 As we have indicated previously, see n. 26, supra, the words "princi- 
pally engaged," contained in both 19 (e) and 20 of the Glass-SteagaU 
Act, the sections applicable to bank affiliates, indicate a significantly less 
stringent test for determining the permissibility of securities-related ac- 
tivity than does the word "engaged," contained in 16 and 21, the 
sections applicable to banks. 

47 See nn. 32, 33, supra, and accompanying text. 

48 See n. 26, supra. 

49 The 1966 Senate Report on the 1966 Amendments to the Bank Hold- 
ing Company Act states that the purpose of the 1956 Act was in part to 



72 OCTOBER TERM, 1980 

Opinion of the Court 450 U. S. 

A review of the 1970 Amendments to the Bank Holding 
Company Act only strengthens this conclusion. 50 On its face 
the 1970 amendment to 4(c)(8) would appear to have 



serve the "general purposes of the Glass-Steagall Act of 1933 to prevent 
unduly extensive connections between banking and other businesses." 1966 
Senate Report, at 2 The legislative history identified by the Court of 
Appeals merely indicates that Congress recognized the deficiency of 19 
(e), 1955 Senate Report, at 2, or that Congress intended the Bank Hold- 
ing Company Act to serve some of the same policies that we have identi- 
fied as motivating the Glass-Steagall Congress: 

"Whenever a holding company thus controls both banks and nonbanking 
businesses, it is apparent that the holding company's nonbanking businesses 
may thereby occupy a preferred position over that of their competitors 
in obtaining bank credit. It is also apparent that in critical times the 
holding company which operates nonbanking businesses may be subjected 
to strong temptation to cause the banks which it controls to make loans to 
its nonbanking affiliates even though such loans may not at that time be 
entirely justified in the light of current banking standards. In either situa- 
tion the public interest becomes directly involved." 1955 House Report, 
at 16. 

The Court of Appeals also cited legislative history indicating that the 
Board was to have a "limited" authority to administer the 4 (c) (8) excep- 
tion. See Control and Regulation of Bank Holding Companies: Hearings 
on H. R. 2674 before the House Committee on Banking and Currency, 84th 
Cong., 1st Sess., 14 (1955) ; Control of Bank Holding Companies: Hearings 
on S. 880, S. 2350, and H. R. 6277 before a Subcommittee of the Senate 
Committee on Banking and Currency, 84th Cong., 1st Sees., 76 (1955). 
The fact that the scope of the Board's discretion was to be limited sheds 
no light on the question of Congress' view of the Glass-Steagall Act. 
Moreover, although the Court of Appeals relied, as indicative of congres- 
sional intent regarding the scope of 4(c)(8), on the Senate Report's 
omission of any securities-related activities from the listing of activities 
clearly falling within the 4 (c)(8) exception, 196 U. S. App. D. C., at 
110, 606 F. 2d, at 1017, the Senate Report, after listing those obviously 
related activities, goes on to indicate the importance of the Board's role in 
approving other such activities. See 1955 Senate Report, at 13; n. 23, 
supra. Finally, the Court of Appeals found significance in the repeal of 
19 (e) of Glass-Steagall in 1966 and the Senate Report's indication that 
19 (e) "serve[d] no substantial purpose" after passage of the 1956 Act. 
1966 Senate Report, at 12. At the same time as Congress repealed 

[Footnote 50 is on p. 



BOARD OF GO VS., FRS v. INVESTMENT COMPANY INST. 73 
46 Opinion of the Court 

broadened the Board's authority to determine when an activ- 
ity is sufficiently related to banking to be permissible for a 
nonbanking subsidiary of a bank holding company. 51 The 
initial versions of both the House and the Senate bills changed 
the "closely related 37 test of 4 (c) (8) to a "functionally re- 
lated" test. 52 The Conference Committee's final version of 
the bill, however, retained the "closely related" language of 
the 1956 Act. 53 Whether this indicated that 4(c)(8) was 
to have the same scope as it did under the 1956 Act is diffi- 
cult to discern. 54 For purposes of this case, however, we need 



19 (e) , however, it amended the definition of "affiliate" in 2 (b) of the 
Glass-Steagall Act to include bank holding companies, so that the restric- 
tions applying to affiliates contained in 20 of the Act then applied to 
bank holding companies as well. 80 Stat. 242. Furthermore, the fact 
that 19 (e) served no purpose after the passage of the 1956 Act merely 
indicates that Congress was successful in its attempt to close the loop- 
hole left by Congress in the Glass-Steagall Act. It does not indicate 
that the 1956 Congress sought to impose more substantial restrictions 
than those contained in 19 (e) or that the 1956 Congress misperceived 
the scope of those restrictions. 

50 See S. Rep. No. 91-1084, p. 4 (1970) (hereinafter 1970 Senate 
Report) : "[T]he primary purpose of the pending legislation is to modify 
the Bank Holding Company Act of 1956 to bring under its provisions those 
companies controlling one bank . . . ." See also H. R. Rep. No. 91-387, 
p. 2 (1969) (hereinafter 1969 House Report) . 

51 The 1956 version had required a close connection to the "business of 
banking." The 1970 Amendments required only a close connection to 
"banking." This change eliminated the requirement that bank holding 
companies show a close connection between a proposed activity and an 
activity in which the holding company or its subsidiary already actually 
engaged. Thus the 1970 amendment to 4 (c) (8) permitted bank holding 
companies to engage in any activities closely related to activities generally 
engaged in by banks. H. R. Conf. Rep. No. 91-1747, p. 16 (1970) (herein- 
after 1970 Conference Report) ; 116 Cong. Rec. 42436 (1970) (remarks of 
Sen. Bennett). 

52 1969 House Report, at 1; 1970 Senate Report, at 25. 
53 1970 Conference Report, at 5. 

54 The Conference Committee Report, signed by only four of the seven 
House conference managers, indicated that the "functionally related" test 



74 OCTOBER TERM, 1980 

Opinion of the Court 450 U. S. 

not reconcile the conflicting views as to whether the 1970 
amendment expanded the scope of 4 (c)(8), because no one 
disputes that the Board's discretion is at least as broad under 
the 1970 Amendments as it was under the 1956 Act. There- 
fore, our conclusion that nothing in the 1956 Act or its legis- 
lative history indicates that Congress intended to prohibit 
bank holding companies from acting as investment advisers 
to closed-end investment companies should also apply to the 
1970 Amendments unless Congress specifically indicated that 
such services should not be authorized by the Board. Not 
only is there no such specific evidence, there is affirmative 
evidence to the contrary. 

The legislative history of the 1970 Amendments indicates 
that Congress did not intend the 1970 Amendments to have 
any effect on the prohibitions of the Glass-Steagall Act. 
The Senate chairman of the Conference Committee assured 
his fellow Senators that the conference bill was intended 
neither to enlarge nor to restrict the prohibitions contained 



represented a "more liberal and expansive approach by the Federal Re- 
serve Board in authorizing nonbank activities for bank holding companies" 
and that the retention of the "closely related" language indicated that 
"Congress was not convinced that such expansion and liberalization was 
justified." Id., at 21. This view was not shared by all of the Senate 
Members of the Conference Committee, however. Senator Bennett criti- 
cized the Conference Report as an inaccurate indication of the confer- 
ence's intent and expressed his belief that the conference intended to 
broaden the power of the Board to determine what activities are closely 
related to banking. 116 Cong Rec. 42432-42437 (1970). Senator Bennett 
indicated that the proposed term "functionally related" was no broader 
than the retained term "closely related/' and that the removal of the 
phrase "of a financial, fiduciary, or insurance nature" was intended to 
reflect an expansion of the Board's discretion. Id., at 42432-42433. See 
also id., at 42422 (remarks of Sen. Sparkman). See n. 2, supra. All of 
the Senators on the Conference Committee, however, did not so perceive 
the final version of 4(c)(8). Senator Proxmire indicated that "the 
conference committee agreed essentially to retain the standards of the 
existing 1956 Bank Holding Company Act." 116 Cong. Rec. 42427 (1970). 



BOARD OF GOVS, FRS v. INVESTMENT COMPANY INST. 75 
46 Opinion of the Court 

in the Glass-Steagall Act. 55 Moreover, the Senate Report 
refers to investment services but declines to state that the 
Board could not approve under 4 (c) (8) "bank sponsored 
mutual funds." 56 The House's version of the bill rigidly 

55 During debate on the conference bill, Senator Williams expressed con- 
cern about the effect of the 1970 Amendments on the prohibitions of the 
Glass-Steagall Act: 

"Mr. WILLIAMS of New Jersey. I have one question I should like to 
ask the chairman of the committee. 

"Both the Senate and House bills contained, in section 4 (c) (8) , sub- 
stantially similar language reiterating the existing law embodied in the 
Glass-Steagall Act which provides, essentially, for separation of commer- 
cial banking and the securities business. This language does not appear 
in the bill agreed to by the conferees. I wonder whether there was any 
intention to imply that the very securities-related activities forbidden to 
banks directly may nevertheless be engaged in by bank-holding companies 
or their nonbanking affiliates. 

"Mr. SPARKMAN. The answer to the Senator's question is that there 
clearly was not. As it now stands, the Glass-Steagall Act broadly prohibits 
both banks and their affiliates from engaging in what we commonly under- 
stand to be the securities business. There are some specific exceptions, of 
course, but I can assure you that we did not mean to enlarge or contract 
them here. We regarded that general prohibition as being so clearly ap- 
plicable to the subjects of this bill as to make a restatement of it unneces- 
sary. The provision to which you referred is already complicated enough 
In short, we did not intend to amend or modify, directly or indirectly, any 
limitations on the activities of banks, bank holding companies or any of 
their affiliates, now contained in the Glass-Steagall Act. If Congress is to 
change that longstanding, fundamental statement of public policy, we will 
have to do so in other legislation. I hope there is no longer any miscon- 
ception on that point. 

"Mr. WILLIAMS of New Jersey. It is reassuring, indeed, to know that 
the Glass-Steagall Act has not been disturbed in any way and that there 
is no intention at all here to do so." Id., at 42430. 

See also 1970 Senate Report, at 15. By the time Congress was considering 
the 1970 Amendments, the definition of "affiliate" contained in 2 (b) of 
the Glass-Steagall Act had been amended to include bank holding com- 
panies, so that the prohibitions contained in 20 of Glass-Steagall had 
become applicable to bank holding companies. 

58 1970 Senate Report, at 15. The Report notes that the Senate version 
of the bill prohibited bank holding companies from holding shares in com- 



76 OCTOBER TERM, 1980 

Opinion of the Court 450 TJ. S. 

confined the Board's discretion in certain areas by including 
a "laundry list" of activities which the Board could not 
approve. Included in this list was a prohibition of bank 
holding company acquisition of shares of any company en- 
gaged in "the issue, flotation, underwriting, public sale, or 
distribution," of securities, "whether or not any such interests 
are redeemable." ^ The Conference Committee deleted this 
list. This deletion indicates a rejection of the House's re- 
strictive approach in favor of the Senate's more flexible atti- 
tude toward the Board's exercise of its discretion. 68 Thus 



panies "engaged principally in the issue, flotation, underwriting, public sale, 
or distribution at wholesale or retail or through syndicate participation of 
stocks, bonds, debentures, notes or securities." The Report recognized 
that this provision was a restatement of the prohibition already contained 
in the Glass-Steagall Act. The Report goes on to state: 
"The inclusion of this provision is not intended to prejudice the rights of 
banks or bank holding companies or their affiliates to engage in such of 
these activities as may be permitted under existing law or which may be- 
come permissible under this legislation or under any future legislation. 
In particular, the language is not intended to inhibit the underwriting of 
revenue bonds nor operating commingled or managing agency accounts 
(bank sponsored mutual funds) which activities have already been specifi- 
cally approved in legislation previously reported by this committee and 
passed by the Senate, if such legislation is finally enacted, if these activi- 
ties are allowed under the amendments being made by this legislation, or 
if the activities are permitted by the courts." Ibid. 

When the 1970 Amendments were passed, the status of bank-sponsored 
mutual funds under the Glass-Steagall Act was unsettled The District of 
Columbia Circuit's decision in National Association of Securities Dealers v. 
SEC, 136 U. S. App D. C. 241, 420 P. 2d 83 (1969), approving bank 
operation of mutual funds, had not yet been reversed by our decision in 
Investment Company Institute v. Camp, 401 U. S. 617 (1971). 

67 115 Cong. Rec. 33133 (1969). 

58 Senator Goodell stated that "[t]he Senate-passed bill ... provided 
the banking industry with a great deal of flexibility regarding expansion 
into bank-related activities." 116 Cong. Rec. 42429 (1970). See n. 23, 
supra. As Senator Sparkman stated of the conference: "We reached a 
decision that the whole thing ought to be flexible, that it ought to be 
lodged in the hands of the Federal Reserve Board to carry out the guide- 
lines we set." 116 Cong. Rec. 42429 (1970). 



BOARD OF GOVS., FRS v. INVESTMENT COMPANY INST. 77 
46 Opinion of the Court 

as we read the legislative history of the 1970 Amendments, 
Congress did not intend the Bank Holding Company Act 
to limit the Board's discretion to approve securities-related 
activity as closely related to banking beyond the prohibitions 
already contained in the Glass-Steagall Act. 59 This case is 



59 The Court of Appeals read the colloquy between Senators Williams 
and Sparkman, see n. 55, supra, as an indication that Congress was under 
the impression admittedly incorrect that the Glass-Steagall Act pro- 
hibited the services authorized by the Board here. 196 U. S. App. D. C., 
at 115, 606 F. 2d, at 1022. In light of the indications in the Senate Report 
that the Senate did not intend 4 (c) (8) to foreclose the Board from ap- 
proving bank-sponsored mutual funds, see n. 56, supra, and accompanying 
text, the Senate colloquy cited by the Court of Appeals lends scant support 
to the theory that Congress misunderstood the scope of the Glass-Steagall 
Act. Moreover, the language deleted from the Senate bill's version of 
4 (c) (8) to which Senators Sparkman and Williams were referring con- 
tained the "principally engaged" standard contained in 20 of the Glass- 
Steagall Act, and not the more complete prohibition contained in 16 and 
21. See nn. 54, 55, supra. Furthermore, if Congress was confused about 
the scope of the Glass-Steagall Act, it may have believed that the statute 
permitted more than is actually the case. See n. 55, supra. Finally, given 
the flexible approach to 4 (c)(8) which prevailed in the 1970 Amend- 
ments, we must presume that Congress did not intend to adopt a rigid and 
fixed construction of the Glass-Steagall Act but rather intended that the 
prevailing view of Glass-Steagall should guide the Board's discretion. 

We also disagree with the Court of Appeals' conclusion that the policies 
underlying the 1970 Amendments would be frustrated by permitting bank 
holding companies to act as investment advisers to closed-end investment 
companies. See 196 U. S. App. B. C., at 116, 606 F. 2d, at 1023. The 
first policy, the fear that bank holding companies would improperly further 
the interests of the nonbanking subsidiary, is adequately protected by the 
Board's interpretive ruling. See nn. 38-44, supra, and accompanying text. 
Furthermore, given our conclusion that the 1970 Amendments at the very- 
least did not cut back on the discretion granted the Board under the 1956 
Act, we believe that to the extent that Congress addressed in the 1970 
Amendments the second policy, the prevention of centralization of eco- 
nomic power, it did so by eliminating the one bank holding company loop- 
hole and not by limiting Board discretion to determine what activities are 
closely related to banking. 1970 Senate Report at 2-4; 1969 House 
Report, at 2. 



78 OCTOBER TERM, 1980 

Opinion of the Court 450 U.S. 

therefore one that is best resolved by deferring to the Board's 
expertise in determining what activities are encompassed 
within the plain language of the statute. 

Because we have concluded that the Board's decision to 
permit bank holding companies to act as investment advisers 
for closed-end investment companies is consistent with the 
language of the Bank Holding Company Act, and because 
such services are not prohibited by the Glass-Steagall Act, 
we hold that the amendment to Regulation Y does not ex- 
ceed the Board's statutory authority. The judgment of the 
Court of Appeals is 

Reversed. 

JUSTICE STEWART and JUSTICE REHNQUIST took no part in 
the consideration or decision of this case. JUSTICE POWELL 
took no part in the decision of this case. 



CARSON v. AMERICAN BRANDS, INC. 79 

Syllabus 

CARSON ET AL. v. AMERICAN BRANDS, INC., T/A 
AMERICAN TOBACCO CO., ET AL. 

CERTIORARI TO TSCE UNITED STATES COURT OP APPEALS FOR THE 

FOURTH: CIRCUIT 
No 79-1236. Argued December 10, 1980 Decided February 25, 1981 

Petitioners, representing a class of present and former black employees 
and job applicants, sought injunctive and declaratory relief and damages 
in an action under 42 U. S. C 1981 and Title VII of the Civil Rights 
Act of 1964, alleging that respondent employer and unions had engaged 
in racially discriminatory employment practices. The parties negotiated 
a settlement and jointly moved the District Court to enter a proposed 
consent decree which would permanently enjoin respondents from dis- 
criminating against black employees and would require them to give 
hiring and seniority preferences to black employees and to fill one-third 
of certain supervisory positions with qualified blacks. The court denied 
the motion, holding that since there was no showing of present or past 
discrimination, the proposed decree illegally granted racial preferences 
to the petitioner class, and that in any event the decree would be illegal 
as extending relief to all present and future black employees, not just 
to actual victims of the alleged discrimination. The Court of Appeals 
dismissed petitioners' appeal for want of jurisdiction, holding that the 
District Court's order was not appealable under 28 U. S. C. 1292 
(a) (1), which permits appeals as of right to the courts of appeals from 
interlocutory orders of district courts "refusing . . . injunctions." 

Held: The District Court's interlocutory order refusing to enter the con- 
sent decree was an order "refusing" an "injunction" and was therefore 
appealable under 1292(a)(l). Pp. 83-90. 

(a) The order, although not in terms refusing an injunction, had the 
practical effect of doing so. However, for such an interlocutory order 
to be immediately appealable under 1292 (a) (1), a litigant must also 
show that the order might have "serious, perhaps irreparable, conse- 
quence" and that the order can be "effectually challenged" only by 
immediate appeal. Baltimore Contractors, Inc. v. Bodinger, 348 II. S. 
176, 181. Pp. 83-86. 

(b) Here, petitioners meet such test. First, they might lose their 
opportunity to settle their case on the negotiated terms, because a 
party to a pending settlement might be legally justified in withdrawing 
its consent to the agreement once trial is held and final judgment en- 



80 OCTOBER TERM, 1980 

Opinion of the Court 450 U.S. 

tered. And a second "serious, perhaps irreparable, consequence" of the 
District Court's order justifying an immediate appeal is that, because 
petitioners cannot obtain the injunctive relief of an immediate restruc- 
turing of respondents' transfer and promotional policies until the pro- 
posed consent decree is entered, any further delay in reviewing the 
propriety of the District Court's refusal to enter the decree might cause 
them serious or irreparable harm. Pp. 86-89. 
606 F. 2d 420, reversed. 

BRENN-AN, J., delivered the opinion for a unanimous Court. 

Napoleon B. Williams, Jr., argued the cause for petitioners. 
With him on the briefs were Henry L. Marsh III, Jack Green- 
berg, James M. Nabrit III, and Barry L. Goldstein. 

Henry T. Wickham argued the cause for respondent Amer- 
ican Brands, Inc. With him on the brief were Paul G. Pen- 
noyer, Jr., Bernard W. McCarthy, and D. Eugene Webb, Jr. 
Jay J. Levit argued the cause for respondent unions. With 
him on the brief was James F. Carroll. 

Harlon L. Dalton argued the cause for the United States 
et al. as amid curiae urging reversal. With him on the brief 
were Solicitor General McCree, Assistant Attorney General 
Days, Deputy Solicitor General Wallace, Brian K. Landsberg, 
Marie E. Klimesz, and Leroy D. Clark* 

JUSTICE BBENNAN delivered the opinion of the Court. 

The question presented in this Title VII class action is 
whether an interlocutory order of the District Court denying 
a joint motion of the parties to enter a consent decree con- 
taining injunctive relief is an appealable order. 



Petitioners, representing a class of present and former black 
seasonal employees and applicants for employment at the 



*Robert E. Williams and Douglas S. McDowell filed a brief for the 
Equal Employment Advisory Council as amicus curiae urging reversal. 



CARSON v. AMERICAN BRANDS, INC. 81 

79 Opinion of the Court 

Richmond Leaf Department of the American Tobacco Co., 
brought this suit in the United States District Court for the 
Eastern District of Virginia under 42 TJ. S. Q 1981 and 
Title VII of the Civil Rights Act of 1964, 42 TL S. C. 2000e 
et seq. Alleging that respondents * had discriminated against 
them in hiring, promotion, transfer, and training opportuni- 
ties, petitioners sought a declaratory judgment, preliminary 
and permanent injunctive relief, and money damages. 

After extensive discovery had been conducted and the plain- 
tiff class had been certified, 2 the parties negotiated a settle- 
ment and jointly moved the District Court to approve and 
enter their proposed consent decree. See Fed. Rule Civ. Proc. 
23 (e). 3 The decree would have required respondents to give 
hiring and seniority preferences to black employees and to 
fill one-third of all supervisory positions in the Richmond 
Leaf Department with qualified blacks. While agreeing to 
the terms of the decree, respondents "expressly den[ied] any 
violation of ... any . . . equal employment law, regulation, 
or order." App. 25a. 

The District Court denied the motion to enter the proposed 
decree. 446 R Supp. 780 (1977), Concluding that prefer- 
ential treatment on the basis of race violated Title VII and 



1 Respondents in this case are: American Brands, Inc,. which operates 
the Richmond Leaf Department of the American Tobacco Co.; Local 182 
of the Tobacco Workers International Union, the exclusive bargaining 
agent for all hourly paid production unit employees of the Richmond Leaf 
Department; and the International Union. 

2 The class was certified pursuant to Federal Rule of Civil Procedure 23 
(b) (2). It consisted of black persons who were employed as seasonal em- 
ployees at the Richmond Leaf Department on or after September 9, 1972, 
and black persons who applied for seasonal employment at the Depart- 
ment on or after that date. 

3 Rule 23 (e) provides: 

"A class action shall not be dismissed or compromised without the ap- 
proval of the court, and notice of the proposed dismissal or compromise 
shall be given to all members of the class in such manner as the court 
directs." 



82 OCTOBER TERM, 1980 

Opinion of the Court 450 U.S. 

the Constitution absent a showing of past or present discrim- 
ination, and that the facts submitted in support of the decree 
demonstrated no "vestiges of racial discrimination/' id., at 
790, the court held that the proposed decree illegally granted 
racial preferences to the petitioner class. It further declared 
that even if present or past discrimination had been shown, 
the decree would be illegal in that it would extend relief to 
all present and future black employees of the Richmond Leaf 
Department, not just to actual victims of the alleged discrim- 
ination. Id., at 789. 

The United States Court of Appeals for the Fourth Circuit, 
sitting en bane, dismissed petitioners 3 appeal for want of juris- 
diction. 606 F. 2d 420 (1979). It held that the District 
Court's refusal to enter the consent decree was neither a "col- 
lateral order" under 28 U. S. C. 1291, 4 nor an interlocutory 
order "refusing" an "injunctio[n]" under 28 U. S. C. 1292 
(a)(l). c Three judges dissented, concluding that the order 
refusing to approve the consent decree was appealable under 
28 U. S. C. 1292(a)(l). 

Noting a conflict in the Circuits, 6 we granted certiorari. 

4 Although the Court of Appeals did not expressly mention the collateral- 
order doctrine, petitioners argued that the District Court order was ap- 
pealable under that doctrine, and the Court of Appeals cited cases decided 
under that doctrine. 606 F. 2d, at 423-424, citing Coopers & Lybrand v. 
Livesay, 437 U. S. 463 (1978) ; Cohen v. Beneficial Industrial Loan Corp., 
337 U S. 541 (1949); and Seigal v. Merrick, 590 F. 2d 35 (CA2 1978). 

Title 28 U. S. C. 1292 (a)(l) provides: 

"(a) The courts of appeals shall have jurisdiction of appeals from: 

"(1) Interlocutory orders of the district courts of the United States, . . . 
or of the judges thereof, granting, continuing, modifying, refusing or dis- 
solving injunctions, or refusing to dissolve or modify injunctions, except 
where a direct review may be had in the Supreme Court ....*' 

6 Compare Norman v. McKee, 431 F. 2d 769 (CA9 1970) (refusal to enter 
consent decree appealable under 1291), cert, denied sub nom. Security 
Pacific National Bank v. Myers, 401 U. S. 912 (1971), and United States 
v. City of Alexandria, 614 F. 2d 1358 (CAS 1980) (refusal to enter consent 
decree appealable under 1292 (a) (1)), with Seigal v. Merrick, supra (not 
appealable under 1291), and 606 F. 2d 420 (CA4 1979) (case below) (not 



CARSON v. AMERICAN BRANDS, INC. 83 

79 Opinion of the Court 

447 TJ. S. 920 (1980). We hold that the order is appealable 
under 28 XL S. C. 1292 (a)(l), and accordingly reverse the 
Court of Appeals. 7 

II 

The first Judiciary Act of 1789, 1 Stat. 73, established the 
general principle that only final decisions of the federal dis- 
trict courts would be reviewable on appeal. 28 U. S. C. 
1291. See Baltimore Contractors, Inc. v. Bodinger, 348 
U. S. 176, 178-179 (1955); Cobbledick v. United States, 309 
U. S. 323, 324-325 (1940). Because rigid application of this 
principle was found to create undue hardship in some cases, 
however, Congress created certain exceptions to it. See Bal- 
timore Contractors , Inc. v. Bodinger, supra, at 180181. One 
of these exceptions, 28 U. S. C. 1292 (a)(l), permits ap- 
peal as of right from "[i]nterlocutory orders of the district 
courts . . . granting, continuing, modifying, refusing or dis- 
solving injunctions . . . ." (Emphasis added.) 8 

Although the District Court's order declining to enter the 
proposed consent decree did not in terms "refus[e]" an "in- 
junctio[n]," it nonetheless had the practical effect of doing 
so. Cf. General Electric Co. v. Marvel Rare Metals Co., 287 
U. S. 430, 433 (1932). This is because the proposed decree 



appealable under 1291 or 1292 (a)(l)). See also In re International 
House of Pancakes Franchise Litigation, 487 F. 2d 303 (CAS 1973) (refusal 
to enter proposed settlement agreement appealable; no discussion of juris- 
dictional question). 

7 We therefore need not decide whether the order is also appealable 
under 28 U. S. C. 1291. 

8 This statutory exception was first established by the Evarts Act of 
1891, 7, 26 Stat. 828, which authorized interlocutory appeals "where . . . 
an injunction shall be granted or continued by interlocutory order or 
decree." In 1895, that Act was amended to extend the right of appeal 
to orders of the district courts refusing requests for injunctions. 28 
Stat. 666. Although the reference to orders refusing injunctions was 
dropped from the statute in 1900 for reasons not relevant here, 31 Stat. 
660, the reference was reinstated in 129 of the Judicial Code of 1911, 36 
Stat. 1134, and has since remained part of the statute. 



84 OCTOBER TERM, 1980 

Opinion of the Court 450 II. S 

would have permanently enjoined respondents from discrimi- 
nating against black employees at the Richmond Leaf Depart- 
ment, and would have directed changes in seniority and ben- 
efit systems, established hiring goals for qualified blacks ir 
certain supervisory positions, and granted job-bidding prefer- 
ences for seasonal employees. Indeed, prospective relief was 
at the very core of the disapproved settlement. 9 

For an interlocutory order to be immediately appealable 
under 1292 (a) (1), however, a litigant must show more thar 
that the order has the practical effect of refusing an injunc 
tion. Because 1292 (a)(l) was intended to carve out onlj 
a limited exception to the final- judgment rule, we have con- 
strued the statute narrowly to ensure that appeal as of righl 
under 1292(a)(l) will be available only in circumstance? 
where an appeal will further the statutory purpose of "per- 
mit [ting] litigants to effectually challenge interlocutory or- 
ders of serious, perhaps irreparable, consequence/' Baltimore 
Contractors, Inc. v. Bodinger, supra, at 181. Unless a litigant 
can show that an interlocutory order of the district court 
might have a "serious, perhaps irreparable, consequence," and 
that the order can be "effectually challenged" only by imme- 
diate appeal, the general congressional policy against piece- 
meal review will preclude interlocutory appeal. 

In Switzerland Cheese Assn., Inc. v. E. Home's Market, 
Inc., 385 U. S. 23 (1966), for example, petitioners contended 
that the District Court's denial of their motion for summary 
judgment was appealable under 1292 (a)(l) simply because 



9 Neither the parties nor the Court of Appeals dispute that the pre- 
dominant effect of the proposed decree would have been injunctive. The 
parties entitled the major part of the decree, "Injunctive Relief for the 
Class," and expressly agreed that respondents would be "permanently en- 
joined from discriminating against black employees <*t the facilities of the 
Richmond Leaf Department." App. 26a, 27a (emphasis added). The 
Court of Appeals, in construing the effect of the District Court's action, 
similarly characterized the relief contained in the proposed decree as 
"injunctive." 606 F. 2d., at 423. 



CARSON v. AMERICAN BRANDS, INC. 85 

79 Opinion of the Court 

its practical effect was to deny them the permanent injunc- 
tion sought in their summary- judgment motion. Although 
the District Court order seemed to fit within the statutory 
language of 1292(a)(l), petitioners' contention was re- 
jected because they did not show that the order might cause 
them irreparable consequences if not immediately reviewed. 
The motion for summary judgment sought permanent and 
not preliminary injunctive relief and petitioners did not ar- 
gue that a denial of summary judgment would cause them 
irreparable harm pendente lite. Since permanent injunctive 
relief might have been obtained after trial, 10 the interlocutory 
order lacked the "serious, perhaps irreparable, consequence" 
that is a prerequisite to appealability under 1292 (a)(l). 

Similarly, in Gardner v. Westinghouse Broadcasting Co., 
437 U. S. 478 (1978), petitioner in a Title VII sex discrimina- 
tion suit sought a permanent injunction against her prospec- 
tive employer on behalf of herself and her putative class. 
After the District Court denied petitioner's motion for class 
certification, petitioner filed an appeal under 1292(a)(l). 
She contended that since her complaint had requested injunc- 
tive relief, the court's order denying class certification had the 
effect of limiting the breadth of the available relief, and there- 
fore of "refus[ing] a substantial portion of the injunctive 
relief requested in the complaint." 437 U. S., at 480. 

As in Switzerland Cheese, petitioner in Gardner had not 
filed a motion for a preliminary injunction and had not alleged 
that a denial of her motion would cause irreparable harm. 
The District Court order thus had "no direct or irreparable 
impact on the merits of the controversy." 437 U. S., at 482. 

10 The District Court denied petitioners' motion for summary judgment 
because it found disputed issues of material fact, not because it disagreed 
with petitioners' legal arguments. Thus, not only was the court free to 
grant the requested injunctive relief in full after conducting a trial on the 
merits, but it was also not precluded from granting a motion for prelimi- 
nary injunction during the pendency of the litigation if petitioners were 
to allege that further delay would cause them irreparable harm. 



86 OCTOBER TERM, 1980 

Opinion of the Court 450 TJ. 8. 

Because the denial of class certification was conditional, Fed. 
Rule Civ. Proc. 23 (c)(l), and because it could be effectively 
reviewed on appeal from final judgment, petitioner could still 
obtain the full permanent injunctive relief she requested and 
a delayed review of the District Court order would therefore 
cause no serious or irreparable harm. As Gardner stated: 

"The order denying class certification in this case did 
not have any such 'irreparable 1 effect. It could be re- 
viewed both prior to and after final judgment; it did not 
affect the merits of petitioner's own claim ; and it did not 
pass on the legal sufficiency of any claims for injunctive 
relief." 437 U. S., at 480-481 (footnotes omitted). 11 

Ill 

In the instant case, unless the District Court order denying 
the motion to enter the consent decree is immediately appeal- 
able, petitioners will lose their opportunity to "effectually 
challenge" an interlocutory order that denies them injunctive 
relief and that plainly has a "serious, perhaps irreparable, con- 
sequence." First, petitioners might lose their opportunity to 
settle their case on the negotiated terms. As United States 
v. Armour & Co., 402 U. S. 673, 681 (1971), stated: 

"Consent decrees are entered into by parties to a case 
after careful negotiation has produced agreement on their 
precise terms. The parties waive their right to litigate 
the issues involved in the case and thus save themselves 



11 By contrast, General Electric Co. v. Marvel Rare Metals Co., 287 
U. S. 430 (1932), a case in which respondents sought to appeal the District 
Court's dismissal of their counterclaim for injunctive relief on jurisdictional 
grounds, concluded that the District Court's order did have a serious, per- 
haps irreparable, consequence and that it could not be effectually chal- 
lenged unkos an appeal were immediately taken. The Court noted that 
the District Court "necessarily decided that upon the facts alleged in the 
counterclaim defendants were not entitled to an injunction," id., at 433, 
and that this decision resolved "the very question that, among others, 
would have been presented to the court upon formal application for an 
interlocutory injunction." Ibid. 



CARSON v. AMERICAN BRANDS, INC. 87 

79 Opinion of the Court 

the time, expense, and inevitable risk of litigation. Nat- 
urally, the agreement reached normally embodies a com- 
promise; in exchange for the saving of cost and elimina- 
tion of risk, the parties each give up something they 
might have won had they proceeded with the litigation." 

Settlement agreements may thus be predicated on an express 
or implied condition that the parties would, by their agree- 
ment, be able to avoid the costs and uncertainties of litiga- 
tion. In this case, that condition of settlement has been 
radically affected by the District Court. By refusing to en- 
ter the proposed consent decree, the District Court effectively 
ordered the parties to proceed to trial and to have their re- 
spective rights and liabilities established within limits laid 
down by that court. 12 Because a party to a pending settle- 
ment might be legally justified in withdrawing its consent to 
the agreement once trial is held and final judgment entered, 13 



12 By refusing to enter the proposed consent decree, the District Court 
made clear that it would not enter any decree containing remedial relief 
provisions that did not rest solidly on evidence of discrimination and that 
were not expressly limited to actual victims of discrimination. 446 F. 
Supp., at 788-790. In ruling so broadly, the court did more than post- 
pone consideration of the merits of petitioners' injunctive claim. It effec- 
tively foreclosed such consideration. Having stated that it could perceive 
no 'Vestiges of racial discrimination" on the facts presented, id., at 790, 
and that even if it could, no relief could be granted to future employees 
and others who were not "actual victims" of discrimination, id., at 789, 
the court made clear that nothing short of an admission of discrimination 
by respondents plus a complete restructuring of the class relief would 
induce it to approve remedial injunctive provisions. 

13 Indeed, although there has yet been no trial, respondents are even 
now claiming a right to withdraw their consent to the settlement agree- 
ment. After the Court of Appeals dismissed petitioners' appeal and re- 
turned jurisdiction to the District Court, respondents filed a motion for a 
pretrial conference in which they stated: "In support of this motion 
the defendants assert that they do not now consent to the entry of the 
proposed Decree . . . ." App. 67a. Neither the District Court nor 
the Court of Appeals has yet considered whether respondents' statement 
constitutes a formal motion to withdraw consent or whether such a with- 



88 OCTOBER TERM, 1980 

Opinion of the Court 450 U.S. 

the District Court's order might thus have the "serious, per- 
haps irreparable, consequence" of denying the parties their 
right to compromise their dispute on mutually agreeable 
terms. 14 

There is a second "serious, perhaps irreparable, conse- 
quence" of the District Court order that justifies our con- 
clusion that the order is immediately appealable under 1292 



drawal would be legally permissible at this point in the litigation, and we 
therefore do not decide those issues. 

14 Furthermore, such an order would also undermine one of the policies 
underlying Title VII. In enacting Title VII, Congress expressed a strong 
preference for encouraging voluntary settlement of employment discrimi- 
nation claims As explained in Alexander v Gardner-Denver Co, 415 
U. S. 36, 44 (1974): 

"Congress enacted Title VII . . to assure equality of employment op- 
portunities by eliminating those practices and devices that discriminate 
on the basis of race, color, religion, sex, or national origin. . . Coopera- 
tion and voluntary compliance were selected as the preferred means for 
achieving this goal " 

Moreover, postjudgment review of a district court's refusal to enter a 
proposed consent decree raises additional problems. Not only might review 
come after the prevailing party has sought to withdraw its consent to the 
agreement, but even if the parties continued to support their decree, the 
court of appeals might be placed in the difficult position of having to 
choose between ordering the agreed-upon relief or affirming the relief 
granted by the trial court even when such relief rested on different facts 
or different judgments with respect to the parties' ultimate liability. 

In addition, delaying appellate review until after final judgment would 
adversely affect the court of appeals' ability fairly to evaluate the 
propriety of the district court's order. Courts judge the fairness of a 
proposed compromise by weighing the plaintiff's likelihood of success on 
the merits against the amount and form of the relief offered in the settle- 
ment. See Protective Comm. for Independent Stockholders v. Anderson, 
390 U. S. 414, 424-425 (1968). They do not decide the merits of the 
case or resolve unsettled legal questions. Since the likely outcome of a 
trial is best evaluated in light of the state of facts and perceptions that 
existed when the proposed consent decree was considered, appellate review 
would be more effective if held prior to the trial court's factfinding rather 
than after final judgment when the rights and liabilities of the parties 
have been established. 



CARSON v. AMERICAN BRANDS, INC. 89 

79 Opinion of the Court 

(a)(l). In seeking entry of the proposed consent decree, 
petitioners sought an immediate restructuring of respondents' 
transfer and promotional policies. They asserted in their 
complaint that they would suffer irreparable injury unless 
they obtained that injunctive relief at the earliest opportu- 
nity. 15 Because petitioners cannot obtain that relief until 
the proposed consent decree is entered, any further delay in 
reviewing the propriety of the District Court's refusal to enter 
the decree might cause them serious or irreparable harm. 16 

In sum, in refusing to approve the parties' negotiated con- 
sent decree, the District Court denied petitioners the oppor- 
tunity to compromise their claim and to obtain the injunc- 
tive benefits of the settlement agreement they negotiated. 

15 In the "Relief" section of their complaint, petitioners alleged* 
"Plaintiffs and the class they represent have suffered and will continue 

to suffer irreparable injury by the policies, practices, customs and usages 
of the defendants complained of herein until the same are enjoined by 
this Court. Plaintiffs have no plain, adequate or complete remedy at law 
to redress the wrongs alleged herein and this suit for a preliminary and 
permanent injunction and declaratory judgment is their only means of 
securing adequate relief. 

"WHEREFORE, plaintiffs pray that this Court advance this case on 
the docket, order a speedy hearing at the earliest practicable date, and 
upon such hearing, to: 

"1. Grant plaintiffs and the class they represent a preliminary and per- 
manent injunction enjoining the defendants and their agents, successors, 
employees, attorneys, and those acting in concert with them and at their 
direction from continuing to maintain policies, practices, customs or usages 
of limiting plaintiffs and members of their class to the lower-paying and 
lees desirable jobs, denying them on-the-job training opportunities, deny- 
ing them the opportunity to advance to supervisory positions, denying 
them fringe benefits afforded other employees of the Company, and deny- 
ing them adequate and effective union representation because of their race 
and color." App. 9a-10a. 

This is essentially the relief that petitioners would have obtained under the 
proposed consent decree. 

16 For example, petitioners might be denied specific job opportunities 
and the training and competitive advantages that would come with those 
opportunities. 



90 OCTOBER TERM, 1980 

Opinion of the Court 450 U.S. 

These constitute "serious, perhaps irreparable, consequences" 
that petitioners can "effectually challenge'' only by an im- 
mediate appeal. It follows that the order is an order "re- 
fusing" an "injunctio[n]" and is therefore appealable under 
1292 (a) (1). 

Reversed. 



STEADMAN v. SEC 91 

SvIIabus 



STEADMAN v. SECURITIES AND EXCHANGE 
COMMISSION 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE 

FIFTH CIRCUIT 

No 79-1266. Argued December 3, 1980 Decided February 25, 1981 

After an on-the-record hearing before an Administrative Law Judge and 
review by the Securities and Exchange Commission (SEC) in which 
the preponderance-of-the-evidence standard of proof was employed, 
the SEC held that petitioner had violated various antifraud provisions 
of the federal securities laws, and sanctions were imposed. Petitioner 
sought review in the Court of Appeals on the alleged ground, inter aha, 
that the SEC's use of the preponderance-of-the-evidence, rather than the 
clear-and-convincing, standard of proof in determining whether he had 
violated the securities laws, was improper. The Court of Appeals re- 
jected the argument. 

Held: 

1. In adjudicatory proceedings before the SEC, 7 (c) of the Admin- 
istrative Procedure Act applies. It provides in pertinent part that a 
sanction may not be imposed by an administrative agency except on 
consideration of th* whole record or parts thereof cited by a party 
and supported by and "in accordance with the reliable, probative, and 
substantial evidence." Pp. 95-97. 

2. The SEC properly used the preponderance-of-the-evidence stand- 
ard of proof in determining whether the antifraud provisions of the 
federal securities laws had been violated. Pp. 97-104. 

(a) Section 7 (c)'s language implies the enactment of a standard of 
proof. By allowing sanctions to be imposed only when they are "in 
accordance with . . . substantial evidence," Congress implied that a 
sanction must rest on a minimum quantity of evidence. And the 
phrase "in accordance with" lends further support to a construction of 
7 (c) as establishing a standard of proof, suggesting that the adjudica- 
tory agency must weigh the evidence and decide, based on the weight of 
the evidence, whether a disciplinary order should be issued. Pp 98-100. 

(b) While 7 (c)'s language is somewhat opaque as to the precise 
standard of proof to be used, the legislative history clearly reveals that 
Congress intended to adopt a preponderance-of-the-evidence standard. 
Pp. 100-102. 



92 OCTOBER TERM, 1980 

Opinion of the Court 450 U.S. 

(c) Such intent is buttressed by the SEC's longstanding practice of 
imposing sanctions according to the preponderance of the evidence. 
Pp. 103-104. 
603 F. 2d 1126, affirmed. 

BRENNAN, J, delivered the opinion of the Court, in which BURGER, 
C. J., and WHITE, MARSHALL, BLACKMXJN, REHNQTTIST, and STEVENS, JJ , 
joined. POWELL, J., filed a dissenting opinion, in which STEWART, J,, 
joined, post, p. 104. 

Peter /. Nickles argued the cause for petitioner. With him 
on the briefs was Alex Kozinski. 

Ralph C. Ferrara argued the cause for respondent. With 
him on the brief were Solicitor General McCree, Stephen M. 
Shapiro, Paul Gonson, Jacob H. Stillman, and Rosalind C. 
Cohen* 

JUSTICE BREN^AW delivered the opinion of the Court. 

In administrative proceedings, the Securities and Exchange 
Commission applies a preponderance-of-the-evidence stand- 
ard of proof in determining whether the antifraud provisions 
of the federal securities laws have been violated. The ques- 
tion presented is whether such violations must be proved by 
clear and convincing evidence rather than by a preponderance 
of the evidence. 

I 

In June 1971, the Commission initiated a disciplinary pro- 
ceeding against petitioner and certain of his wholly owned 
companies. The proceeding against petitioner was brought 
pursuant to 9 (b) of the Investment Company Act of 1940 * 

^Briefs of amid curiae urging reversal were filed by Carl L. Shipley 
for the National Committee of Discount Securities Brokers; and by 
Arthur F. Mathews, Robert B. McCaw, David M Becker, and William 
J. Fitzpatrick for the Securities Industry Association. 

1 Section 9 (b) of the Investment Company Act of 1940, 15 U. S. C. 
80a-9(b), empowers the Commission, in specified circumstances, "after 
notice and opportunity for hearing . . . [to] prohibit, conditionally or 



STEADMAN v. SEC 93 

91 Opinion of the Court 

and 203 (f) of the Investment Advisers Act of 1940. 2 The 
Commission alleged that petitioner had violated numerous 
provisions of the federal securities laws in his management 
of several mutual funds registered under the Investment Com- 
pany Act. 

After a lengthy evidentiary hearing before an Administra- 
tive Law Judge and review by the Commission in which the 
preponderance-of-the-evidence standard was employed, 3 the 

unconditionally, either permanently or for such period of time as it in its 
discretion shall deem appropriate in the public interest, any person from 
serving or acting as an employee, officer, director, member of an advisory- 
board, investment adviser or depositor of, or principal underwriter for, a 
registered investment company or affiliated person of such investment 
adviser, depositor, or principal underwriter . . . ." 

2 Section 203 (f ) of the Investment Advisers Act of 1940, 15 IT. S. C. 
80b-3 (f), empowers the Commission, in specified circumstances, after 
notice and opportunity for hearing "on the record" to "censure or place 
limitations on the activities of any person associated or seeking to be- 
come associated with an investment adviser, or suspend for a period not 
exceeding twelve months or bar any such person from being associated 
with an investment adviser . . . ." 

8 Disciplinary proceedings before the Securities and Exchange Commis- 
sion are governed by the Commission's Rules of Practice, 17 CPU 201.1 
et seq. (1980), which enlarge, in certain respects, protections afforded by 
the Administrative Procedure Act (APA), 5 U. S. C. 551 et seq. Cf. 
Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense 
Council, Inc , 435 U. S. 519, 524 (1978) (as to 5 II. S. C. 553, "Mgencies 
are free to grant additional procedural rights in the exercise of their dis- 
cretion, but reviewing courts are generally not free to impose them if the 
agencies have not chosen to grant them") . A respondent in a disciplinary 
proceeding is entitled to receive timely notice of the charges against him 
and the questions of fact and law to be determined. 17 CPR 201.6 (a) 
(1980). He may retain counsel to represent him in connection with the 
proceeding, 201.2(b), file an answer to the charges against him and 
move for a more definite statement of those charges, 201.7 (a) and 
(d) , and have a trial-type hearing presided over by an impartial adminis- 
trative law judge, other duly-appointed officer, or a Commission member, 
201.11 (b)-(c). The respondent may present oral or documentary 
evidence, cross-examine adverse witnesses, and object to the admission or 
exclusion of evidence. 201. 14 (a), A respondent may compel pro- 



94 OCTOBER TERM, 1980 

Opinion of the Court 460 TJ. S. 

Commission held that between December 1965 and June 
1972, petitioner had violated antifraud, 4 reporting, 5 conflict 
of interest, 6 and proxy 7 provisions of the federal securities 
laws. Accordingly, it entered an order permanently barring 
petitioner from associating with any investment adviser or 
affiliating with any registered investment company, and sus- 
pending him for one year from associating with any broker 
or dealer in securities. 8 

Petitioner sought review of the Commission's order in the 



duction of evidence by subpoena, 201.14(b), and may obtain witness 
statements m the possession of the Commission's staff for cross-examina- 
tion purposes, 201.11.1. At the conclusion of the hearing, the re- 
spondent has the right to submit bnefs and proposed findings of fact and 
conclusions of law. 201 16 (d) The initial decision of the admin- 
istrative law judge must include findings of fact and conclusions of law, 
with supporting reasons, on all material issues of fact, law, or discretion 
presented on the record. 201 16 (a). A respondent may seek review 
by the Commission, which may affirm, reverse, or modify the initial deci- 
sion based on its independent review of the record. 201.17 (g) (2), 
20151. 

4 Section 17 (a) of the Securities Act of 1933, 15 U. S. C. 77q (a) ; 
10 (b) of the Secunties Exchange Act of 1934, 15 TJ. S. C. 78j (b), 
and Rule 10b-5 thereunder, 17 CFR 240 10b-5 (1980) ; 206 (l)-(2) of 
the Investment Advisers Act of 1940, 15 TJ. S C. 80b-6 (l)-(2). 

5 Section 17 (a) of the Securities Exchange Act of 1934, 15 TJ. S. C. 
78q (a), and Rule 17a-5 thereunder, 17 CFR 240.17a-5 (1980); 30 
(a) and 34 (b) of the Investment Company Act of 1940, 15 TJ. S. C. 
80a-29 (a) and 80a-33 (b). 

6 Sections 15 (a) (1), 17 (a), and 17 (e) of the Investment Company Act 
of 1940, 15 U. S. C. 80a-15 (a)(l), 80a-17 (a), and 80a-17 (e). 

7 Section 20 (a) of the Investment Company Act of 1940, 15 TJ. S. C. 
80ar-20(a). 

8 Petitioner was allowed 90 days in which to sell his stock in Steadman 
Securities Corp. Compliance with the Commission's order has been stayed 
pending completion of judicial review. 

Because the Commission imposed severe sanctions on petitioner, the 
Court of Appeals remanded to the Commission "to articulate carefully 
the grounds for its decision, including an explanation of why lesser sanc- 
tions will not suffice." 603 F. 2d 1126, 1143 (CAS 1979). 



STEADMAN v. SEC 95 

91 Opinion of the Court 

United States Court of Appeals for the Fifth Circuit on a 
number of grounds, only one of which is relevant for our 
purposes. Petitioner challenged the Commission's use of the 
preponderance-of-the-evidence standard of proof in determin- 
ing whether he had violated antifraud provisions of the se- 
curities laws. He contended that, because of the potentially 
severe sanctions that the Commission was empowered to im- 
pose and because of the circumstantial and inferential nature 
of the evidence that might be used to prove intent to defraud, 
the Commission was required to weigh the evidence against 
a clear-and-convincing standard of proof. The Court of Ap- 
peals rejected petitioner's argument, holding that in a disci- 
plinary proceeding before the Commission violations of the 
antifraud provisions of the securities laws may be established 
by a preponderance of the evidence. 603 F. 2d 1126, 1143 
(1979). See n. 8, supra. Because this was contrary to the 
position taken by the United States Court of Appeals for the 
District of Columbia Circuit, see Whitney v. SEC, 196 U. S. 
App. D. C. 12, 604 F. 2d 676 (1979) ; Collins Securities Corp. 
v. SEC, 183 U. S. App. D. C. 301, 562 F. 2d 820 (1977), we 
granted certiorari to resolve the conflict. 446 U. S. 917 
(1980). We affirm. 

II 

Where Congress has not prescribed the degree of proof 
which must be adduced by the proponent of a rule or order 
to carry its burden of persuasion in an administrative pro- 
ceeding, this Court has felt at liberty to prescribe the stand- 
ard, for "[i]t is the kind of question which has traditionally 
been left to the judiciary to resolve." Woodby v. INS, 385 
U. S. 276, 284 (1966). However, where Congress has spoken, 
we have deferred to "the traditional powers of Congress to 
prescribe rules of evidence and standards of proof in the fed- 
eral courts" fi absent countervailing constitutional constraints. 

9 There is no reason to accord less deference to congressionally prescribed 
standards of proof and rules of evidence in administrative proceedings than 



96 OCTOBER TERM, 1980 

Opinion of the Court 450 U. S. 

Vance v. Terrazas, 444 U. S. 252, 265 (1980). For Commis- 
sion disciplinary proceedings initiated pursuant to 15 TL S. C, 
80a-9 (b) and 80b-3 (f), we conclude that Congress has 
spoken, and has said that the preponderance-of-the-evidence 
standard should be applied. 10 

The securities laws provide for judicial review of Commis- 
sion disciplinary proceedings in the federal courts of appeals " 
and specify the scope of such review. 12 Because they do 
not indicate which standard of proof governs Commission ad- 
judications, however, we turn to 5 of the Administrative 
Procedure Act (APA), 5 U. S. C. 554, which "applies ... in 
every case of adjudication required by statute to be deter- 
mined on the record after opportunity for an agency hearing," 
except in instances not relevant here. 13 Section 5 (b), 5 



in federal courts. See Woodby v INS, 385 U. S , at 284 (ascertaining first 
that Congress had not legislated a standard of proof for administrative 
deportation proceedings before determining appropriate standard) . 

10 Because the task of determining the appropnate standard of proof 
in the instant case is one of discerning congressional intent, many of peti- 
tioner's arguments are simply inapposite He contends, for example, that 
as a matter of policy, the potentially severe consequences to a respondent 
in a Commission proceeding involving allegations of fraud demand that his 
burden of risk of erroneous factfindmg should be reduced by requiring the 
Commission to prove violations of the antifraud provisions of the securi- 
ties laws by clear and convincing evidence. This argument overlooks, 
however, Congress 7 "traditional powers ... to prescribe . . . standards of 
proof . . . ." Vance v. Terrazas, 444 U. S. 252, 265 (1980). It is not for 
this Court to determine the wisdom of Congress' prescription. 

11 Title 15 U. S. C. 77i, 78y, SOa-42, and 80b-13 provide for judicial 
review of Commission orders in the courts of appeals. 

12 Commission findings of fact are conclusive for a reviewing court "if 
supported by substantial evidence " 15 U. S. C. 78y, 80a-42, and 
80b-13; cf. 77i (Commission findings conclusive "if supported by 
evidence") . 

13 This disciplinary proceeding, brought by the Commission pursuant to 
15 U. S. C. 80ar-9 (b) and 80b-3 (f), is clearly a "case of adjudica- 
tion" within 5 U. S. C. 554. See International Telephone & Telegraph 
Corp. v. Electrical Workers, 419 U. S. 428, 445 (1975). Both 80a-9 (b) 



STEADMAN v. SEC 97 

91 Opinion of the Court 

U. S. C. 554 (c)(2), makes the provisions of 7, 5 U. S. C. 
566, applicable to adjudicatory proceedings. 14 The answer 
to the question presented in this case turns therefore on the 
proper construction of 7. 15 

The search for congressional intent begins with the lan- 
guage of the statute. Andrus v. Allard, 444 U. S. 51, 56 
(1979) ; Reiter v. Sonotone Corp., 442 U. S. 330, 337 (1979) : 



and 80b~3 (f) also explicitly require an "opportunity for [an agency] 
hearing." Moreover, the disciplinary proceeding must be conducted "on 
the record." The phrase "on the record" appears in 80b-3(f), and 
while it does not appear in 80a-9 (b), see n. 1, supra, the absence of the 
specific phrase from 80a-9 (b) does not make the instant proceeding not 
subject to 554 See United States v. Florida East Coast R. Co., 410 
U. S. 224, 238 (1973) ; United States v. Allegheny-Ludlum Steel Corp., 
406 U. S 742, 757 (1972) , Seacoast Anti-Pollution League v. Costle, 572 
F. 2d 872, 876 (CA1), cert, denied, 439 TT. S. 824 (1978). Rather, the "on 
the record" requirement for 80a-9 (b) is satisfied by the substantive con- 
tent of the adjudication. Title 15 U. S C. 80a-42 provides for judicial 
review of Commission orders issued pursuant to 80a-9 (b) . Substantial- 
evidence review by the Court of Appeals here required a hearing on the 
record. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 TT. S. 
402, 415 (1971); Seacoast Anti-Pollution League v. Costle, 572 F. 2d, at 
877. Otherwise effective review by the Court of Appeals would have been 
frustrated. Ibid. In addition, the substantive violations to be proved 
pursuant to 80a-9 (b) (l)-(3) are virtually identical to the substantive 
violations stated in 80b-3 (e) (1), (4), and (5), which are incorporated 
by reference into 80b-3 (f ) . The only substantive difference between 
80b-3 (f ) and 80a-9 (b) is that the former permits the Commission to 
impose sanctions on persons affiliated with an investment adviser and the 
latter on persons affiliated with an investment company. In both statutes, 
the Commission is required to prove violations of the securities law pro- 
visions enumerated, precisely the type of proceeding for which the APA's 
adjudicatory procedures were intended. See generally 410 U. S., at 246. 

"Section 5 (b), 5 U. S. C. 554 (c)(2), provides that "[t]he agency 
shall give all interested parties opportunity for ... hearing and decision 
on notice and in accordance with sections 556 and 557 of this title." 

15 Petitioner makes no claim that the Federal Constitution requires ap- 
plication of a clear-and-convincing-evidence standard. See Tr. of Oral 
Arg. 10. 



98 OCTOBER TERM, 1980 

Opinion of the Court 460 U. S. 

62 Cases of Jam v. United States, 340 U. S. 593, 596 (1951). 
Section 7 (c), 5 U. S. C. 556 (d), states in pertinent part: 

"Except as otherwise provided by statute, the propo- 
nent of a rule or order has the burden of proof. Any oral 
or documentary evidence may be received, but the agency 
as a matter of policy shall provide for the exclusion of 
irrelevant, immaterial, or unduly repetitious evidence. A 
sanction may not be imposed or rule or order issued ex- 
cept on consideration of the whole record or those parts 
thereof cited by a party and supported by and in accord- 
ance with the reliable, probative, and substantial evi- 
dence" (Emphasis added.) 

The language of the statute itself implies the enactment 
of a standard of proof. By allowing sanctions to be imposed 
only when they are "in accordance with . . . substantial evi- 
dence," Congress implied that a sanction must rest on a mini- 
mum quantity of evidence. The word "substantial" denotes 
quantity. 16 The phrase "in accordance with . . . substantial 
evidence" thus requires that a decision be based on a certain 
quantity of evidence. Petitioner's contention that the phrase 
"reliable, probative, and substantial evidence" sets merely a 
standard of quality of evidence is, therefore, unpersuasive. 17 

The phrase "in accordance with" lends further support to 
a construction of 7 (c) as establishing a standard of proof. 
Unlike 10 (e), the APA's explicit "Scope of review" provi- 
sion that declares that agency action shall be held unlawful 

16 Webster's Third New International Dictionary (1976) defines "sub- 
stantial" to mean "considerable in amount." 

17 Section 7 (c), of course, also sets minimum quality-of-evidence stand- 
ards. For example, the provision directing agency exclusion of "irrelevant, 
immaterial, or unduly repetitious evidence" and the further requirement 
that an agency sanction rest on "reliable" and "probative" evidence man- 
date that agency decisionmaking be premised on evidence of a certain 
level of quality. Thus, while the words "reliable" and "probative" may 
imply quality-of-evidence concerns, the word "substantial" implies quantity 
of evidence. 



STEADMAN v. SEC 99 

91 Opinion of the Court 

if "unsupported by substantial evidence/' 1S 7 (c) provides 
that an agency may issue an order only if that order is "sup- 
ported by and in accordance with . . . substantial evidence" 
(emphasis added). The additional words "in accordance 
with" 19 suggest that the adjudicating agency must weigh the 
evidence and decide, based on the weight of the evidence, 
whether a disciplinary order should be issued. The language 
of 7 (c), therefore, requires that the agency decision must be 
"in accordance with" the weight of the evidence, not simply 
supported by enough evidence " 'to justify, if the trial were to 
a jury, a refusal to direct a verdict when the conclusion sought 
to be drawn from it is one of fact for the jury. 3 " Console v. 
FMC, 383 TL S. 607, 620 (1966), quoting NLRB v. Colum- 
bian Enameling & Stamping Co. } 306 TL S. 292, 300 (1939). 
Obviously, weighing evidence has relevance only if the evi- 
dence on each side is to be measured against a standard of 
proof which allocates the risk of error. See Addington v. 
Texas, 441 U. S. 418, 423 (1979). Section 10 (e), by con- 
trast, does not permit the reviewing court to weigh the evi- 
dence, but only to determine that there is in the record " 'such 
relevant evidence as a reasonable mind might accept as ade- 
quate to support a conclusion/ " Consolo v. FMC, supra, at 
620, quoting Consolidated Edison Co. v. NLRB, 305 U. S. 



18 Section 10 (e) of the APA, 5 U. S. C 706, is entitled "Scope of re- 
view" and provides, in pertinent part, that "[t]he reviewing court 
shall . . . hold unlawful and set aside agency action, findings, and conclu- 
sions found to be . unsupported by substantial evidence in a case sub- 
ject to sections 556 and 557 of this title or otherwise reviewed on the rec- 
ord of an agency hearing provided by statute/' 706 (2) (E). 

19 Section 10 (e) expressly refers to 7. Addition of the words "in ac- 
cordance with" could not have been inadvertent. See n. 18, supra. This is 
especially true m light of the House Report's discussion of the relationship 
between 7 (c) and 10 (e) : " 'Substantial evidence' [in 10 (e)] means 
evidence which on the whole record is clearly substantial, plainly sufficient 
to support a finding or conclusion under the requirements of section 7 (c) , 
and material to the issues." H. R Rep No. 1980, 79th Cong, 2d Sess., 
45 (1946). 



100 OCTOBER TERM, 1980 

Opinion of the Court 450 U.S. 

197, 229 (1938). It is not surprising, therefore, in view of 
the entirely different purposes of 7 (c) and 10 (e), that 
Congress intended the words "substantial evidence" to have 
different meanings in context. Thus, petitioner's argument 
that 7 (c) merely establishes the scope of judicial review of 
agency orders is unavailing. 20 

While the language of 7 (c) suggests, therefore, that Con- 
gress intended the statute to establish a standard of proof, the 
language of the statute is somewhat opaque concerning the 
precise standard of proof to be used. The legislative history, 
however, clearly reveals the Congress' intent. The original 
Senate version of 7 (c) provided that "no sanction shall be 
imposed . . . except as supported by relevant, reliable, and pro- 
bative evidence." S. 7, 79th Cong., 1st Sess. (1945). After 
the Senate passed this version, the House passed the language 
of the statute as it reads today, and the Senate accepted the 



20 It is true that the phrase "substantial evidence" is often used to 
denote the scope of judicial review. See n. 12, supra. But to conclude 
that the phrase "substantial evidence" in 7 (c) defines the scope of 
judicial review would make the "substantial evidence" language of 10 (e) 
redundant. Moreover, it is implausible to think that the drafters of the 
APA would place a scope-of-review standard in the middle of a statutory 
provision designed to govern evidentiary issues in adjudicatory proceedings. 
Section 7 is entitled "Hearings; presiding employees; powers and duties; 
burden of proof; evidence; record as basis of decision." It "is made up 
almost entirely of a specification of the various elements of trial proce- 
dure." 2 K. Davis, Administrative Law Treatise 10:07, p. 332 (2d ed. 
1979). More specifically, 7 (c) allocates the burden of proof (placing it 
on the proponent of a rule or order), provides for a broad rule governing 
admissibility of evidence, directs an agency to exclude "irrelevant, im- 
material, or unduly repetitious evidence," and delineates the evidentiary 
basis on which a "sanction may ... be imposed." 

Petitioner's argument overlooks the different functions of initial decision- 
making and judicial review of it. See Charlton v. FTC, 177 U. S. App. 
D. C. 418, 422, 543 F. 2d 903, 907 (1976) ; see generally 4 K. Davis, 
Administrative Law Treatise 29.01-29.11 (1958). As we recognized in 
Console* v. FMC, 383 U. S. 607 (1966), the reviewing court is not to weigh 
the evidence, which Consolo assumed had already been done. 



STEADMAN v. SEC 101 

91 Opinion of the Court 

amendment. Any doubt as to the intent of Congress is re- 
moved by the House Report, which expressly adopted a pre- 
ponderance-of-the-evidence standard : 

"[W]here a party having the burden of proceeding has 
come forward with a prima facie and substantial case, he 
will prevail unless his evidence is discredited or rebutted. 
In any case the agency must decide 'in accordance with 
the evidence/ Where there is evidence pro and con, the 
agency must weigh it and decide in accordance with the 
preponderance. In short, these provisions require a con- 
scientious and rational judgment on the whole record 
in accordance with the proofs adduced." H. R. Rep. 
No. 1980, 79th Cong., 2d Sess., 37 (1946) (emphasis 
added). 21 



21 Representative Walter of Pennsylvania, author of the House Report 
and a principal drafter of the legislation, speaking during the floor debate 
on the day the bill was passed by the House, stated as to the meaning of 
the phrase "in accordance with . . . substantial evidence" that "the ac- 
cepted standards of proof, as distinguished from the mere admissibility of 
evidence, are to govern in administrative proceedings as they do in courts 
of law and equity." S Doc. No. 248, 79th Cong., 2d Sess., 365 (1946). 
This statement suggests that the usual preponderance standard was con- 
templated. See Sea Island Broadcasting Corp. v. FCC, 200 U. S. App. 
D. C. 187, 190, 627 F. 2d 240, 243 (1980) ("The use of the 'preponderance 
of evidence' standard is the traditional standard in civil and administrative 
proceedings. It is the one contemplated by the APA, 5 U. S. C. 556 
(d)"), cert denied, 449 U. S, 834 (1980); Collins Securities Corp. v. SEC, 
183 U. S. App. D. C. 301, 304, 562 F. 2d 820, 823 (1977) ("The traditional 
standard of proof in a civil or administrative proceeding is the preponder- 
ance standard . . .") ; 9 J. Wigmore, Evidence 2498 (3d ed. 1940) ; cf . 
Woodby v. INS, 385 U. S., at 288 (Clark, J., dissenting). 

Moreover, during the floor debate, in the context of a discussion of 
10 (e), it was noted that the substantial-evidence test became the scope- 
of-review standard because of a desire to have courts review agency 
decisionmaking more carefully than under the then-prevalent scintilla-of- 
evidence test. It is clear from the debate that Congress intended agency 
decisionmaking to be done according to the preponderance of the evidence: 

"MR. SPRINGER. . . . The gentleman from Iowa . . . has gone rather 



102 OCTOBER TERM, 1980 

Opinion of the Court 450 U. S 

Nor is there any suggestion in the legislative history that a 
standard of proof higher than a preponderance of the evidence 
was ever contemplated, much less intended. Congress was 
primarily concerned with the elimination of agency decision- 
making premised on evidence which was of poor quality 
irrelevant, immaterial, unreliable, and nonprobative and of 
insufficient quantity less than a preponderance. See id., at 
36-37 and 45; S. Doc. No. 248, 79th Cong., 2d Sess., 320-322 
and 376-378 (1946); n. 21, supra. 

The language and legislative history of 7 (c) lead us to 
conclude, therefore, that 7 (c) was intended to establish a 
standard of proof and that the standard adopted is the tradi- 
tional preponderance-of-the-evidence standard. 22 

carefully over the provisions of the bill. I desire to call attention to only 
one . . relating to the question of reviewable acts, the review of the 
proceedings by the judiciary, and the scope of the review. Under the 
present procedure, in many cases where there is any evidence, even a 
scintilla of evidence, decisions have been rendered and predicated on that 
character of evidence before the hearing tribunal. 

"MR. HANCOCK. Even though contrary to the preponderance of the 
evidence. 

"MR. SPRINGER Yes, . . . that has been done in many cases even 
though it is contrary to the preponderance of the evidence introduced at 
the hearing." S. Doc. No. 248, supra, at 376. 

22 Petitioner's reliance on Woodby v. INS, supra, is misplaced. There 
the Court required the Immigration and Naturalization Service to estab- 
lish facts in deportation proceedings by clear, unequivocal, and con- 
vincing evidence. The Court adopted this standard of proof because 
deportation proceedings were not subject to the APA, and the Immigra- 
tion and Nationality Act (INA) did not prescribe a standard of proof, 
only the scope of judicial review. The Court reached this conclusion after 
examining the language, legislative history, and purpose of 106 (a) (4) 
and 242 (b) (4) of the INA. That both sections contained the words 
"reasonable, substantial, and probative evidence" has little bearing on the 
construction of somewhat different language in an entirely different statute. 
The language, purpose, and legislative history of these sections of the INA 
differ in material respects from the language, purpose, and legislative his- 
tory of 7 (c). Section 106 (a) (4) was explicitly labeled a judicial re- 
view provision. Section 242 (b) (4) was also construed by the Court 



STEADMAN v. SEC 103 

91 Opinion of the Court 

in 

Our view of congressional intent is buttressed by the Com- 
mission's longstanding practice of imposing sanctions accord- 
ing to the preponderance of the evidence. As early as 1938, 
the Commission rejected the argument that in a proceeding 
to determine whether to suspend, expel, or otherwise sanction 
a brokerage firm and its principals for, inter alia, manipula- 
tion of security prices in violation of 9 of the Securities Ex- 
change Act of 1934, 15 U. S. C. 78i, a standard of proof 
greater than the preponderance-of-the-evidence standard was 
required. In re White, 3 S. E. C. 466, 539-540 (1938). Use 
of the preponderance standard continued after passage of the 
APA, and persists today. E. g. 9 In re Cea, 44 S. E. C. 8, 25 



to be "addressed to reviewing courts/* 385 II. S., at 283, in part because 
at the time that the provision was adopted, there was no other scope-of- 
judicial-review provision in the INA, id., at 284 The APA, by contrast, 
was passed with an explicit judicial review provision, 10(e), and with 
a provision explicitly governing evidentiary matters before the agency, 
7 (c). To the extent 242 (b) (4) was viewed by the Court as represent- 
ing a "yardstick for the administrative factfinder," the Court concluded 
that the provision was directed at the quality of evidence upon which an 
order could be based. Id., at 283. The language of 242 (b) (4) differs 
from the language of 7 (c), which includes the additional phrase "in 
accordance with." Moreover, as explained above, the legislative history 
and purpose of 7 (c) make clear that it was not limited to quality-of- 
evidence concerns or directed at aJl at judicial review. 

We thus accept Justice Clark's statement in dissent, with which the 
Court in Woodby did not disagree, that 7 (c) and 10 (e) of the APA 
have "traditionally been held satisfied when the agency decides on the 
preponderance of the evidence." Id., at 289, n. 1. Justice Clark's under- 
standing of 7 (c), as expressed in Woodby t is entitled to particular respect. 
We have previously noted that the Attorney General's Manual on the Ad- 
ministrative Procedure Act (1947) has been "given some deference by this 
Court because of the role played by the Department of Justice in drafting 
the legislation," Vermont Yankee Nuclear Power Corp. v. Natural Re- 
sources Defense Council, Inc., 435 U. S., at 546, and Justice Clark was 
Attorney General both when the APA was passed and when the Manual 
was published. 



OCTOBER TERM, 1980 
POWELL, J., dissenting 450 U S. 

(1969) ; In re Pollisky, 43 S. E. C. 458, 459-460 (1967). The 
Commission's consistent practice, which is in harmony with 
7 (c) and its legislative history, is persuasive authority that 
Congress intended that Commission disciplinary proceedings, 
subject to 7 of the APA, be governed by a preponderance- 
of-the-evidence standard. See Andrus v. Sierra Club, 442 
U. S. 347, 358 (1979) ; United States v. National Association 
of Securities Dealers, Inc., 422 U. S. 694, 719 (1975) ; Skid- 
more v. Swift <& Co., 323 U. S. 134, 140 (1944). 

In Vermont Yankee Nuclear Power Corp. v. Natural Re- 
sources Defense Council, Inc., 435 U. S. 519, 524 (1978), we 
stated that 4 of the APA, 5 U. S. C. 553, established the 
"maximum procedural requirements which Congress was will- 
ing to have the courts impose upon agencies in conducting 
rulemaking procedures." In 7 (c), Congress has similarly 
expressed its intent that adjudicatory proceedings subject to 
the APA satisfy the statute where determinations are made 
according to the preponderance of the evidence. Congress 
was free to make that choice, Vance v. Terrazas, 444 U. S., at 
265-266, and, in the absence of countervailing constitutional 
considerations, the courts are not free to disturb it. 

Affirmed. 

JUSTICE POWELL, with whom JUSTICE STEWART joins, 
dissenting. 

The Securities and Exchange Commission (SEC), acting 
under the antifraud provisions of the Investment Company 
Act of 1940 and the Investment Advisers Act of 1940, has 
imposed severe sanctions on petitioner. He has been barred 
permanently from practicing his profession and also forced 
to divest himself of an investment at a substantial loss. In 
making its findings of fraud and imposing these penalties, 
the SEC applied the "preponderance of the evidence" stand- 
ard of proof. 

The Court today sustains the action of the SEC, holding 



STEADMAN v. SEC 105 

91 POWELL, J., dissenting 

that 7 (c) of the Administrative Procedure Act (APA), 5 
TJ. S. C. 556 (d), commands the use of this standard in dis- 
ciplinary proceedings brought under the securities laws. The 
Court recognizes, however, ante, at 9596, that the general 
provisions of the APA are applicable only when Congress has 
not intended that a different standard be used in the ad- 
ministration of a specific statute. The critical inquiry thus 
is the identification of the standard of proof desired by 
Congress. 

The SEC acted in this case under 9 (b) of the Invest- 
ment Company Act of 1940, 15 U. S. C. 80a-9(b), and 
203 (f) of the Investment Advisers Act of 1940, 15 U. S. C. 
80b-3 (f). Sanctions imposed under these sections are the 
functional equivalent of penalties for fraud. At common law, 
it was plain that allegations of fraud had to be proved by 
clear and convincing evidence. E. g. y Adding ton v. Texas, 441 
U. S. 418, 424 (1979) ; Woodby v. INS, 385 U. S. 276, 285, n. 
18 (1966); Weininger v. Metropolitan Fire Insurance Co., 
359 111. 584, 598, 195 N. E. 420, 426 (1935) ; Bank of Poca- 
hontas v. Ferimer, 161 Va. 37, 40-41, 170 S. E. 591, 592 (1933) ; 
Bowe v. Gage, 127 Wis. 245, 251, 106 N. W. 1074, 1076 
(1906). Congress enacted the Investment Company and 
Investment Advisers Acts against this common-law back- 
ground. There is no evidence that Congress, when it adopted 
these Acts, intended to authorize the SEC to abandon the 
then-applicable standard of proof in fraud adjudications. 
See Whitney v. SEC, 196 TT. S. App. D. C. 12, 604 F. 2d 676 
(1979) ; Collins Securities Corp. v. SEC, 183 TJ. S. App. D. C. 
301, 562 F. 2d 820 (1977). 

The APA, upon which the Court relies, did not become law 
for some seven years after the enactment of the two statutes 
under which the SEC imposed these penalties. Again, the 
Court points to no specific evidence that Congress intended 
the APA to supplant the burden-of-proof rule generally ap- 
plicable when the securities laws were enacted. Thus, the 
APA the general statute applicable only where a specific 



106 OCTOBER TEEM, 1980 

POWELL, J., dissenting 450 IT. S. 

statute is not should have no bearing on the proof burden 
in this case. 

I imply no opinion on the question whether the evidence 
supports the SEC's allegations against petitioner. It is clear, 
however, that the SEC's finding of fraud and its imposition 
of harsh penalties have resulted in serious stigma and dep- 
rivation. Cf. Addington v. Texas, supra* In the absence 
of any specific demonstration of Congress' purpose, we should 
not assume that Congress intended the SEC to apply a lower 
standard of proof than the prevailing common-law standard 
for similar allegations. With all respect, it seems to me that 
the Court's decision today lacks the sensitivity that tradi- 
tionally has marked our review of the Government's imposi- 
tion upon citizens of severe penalties and permanent stigma. 



*Petitioner has practiced the profession of investment adviser for many 
years. He has been forever barred from resuming that profession. 
Many penalties imposed tinder our criminal laws such as monetary 
fines and probation are far less severe, and yet these can be imposed 
only under the "beyond a reasonable doubt" standard of the criminal law. 



DEMOCRATIC PARTY OF U. S. v. WISCONSIN 107 

Syllabus 

DEMOCRATIC PARTY OF UNITED STATES ET ju,. v. 
WISCONSIN EX REL. LA FOLLETTE ET AL. 

APPEAL FROM THE SUPREME COURT OF WISCONSIN 
No 79-1631. Argued December 8, 1980 Decided February 25, 1981 

Rules of the Democratic Part}' of the United States (National Party) pro- 
vide that only those who are willing to affiliate publicly with the 
Democratic Party may participate in the process of selecting delegates 
to the Party's National Convention Wisconsin election laws allow 
voters to participate in its Democratic Presidential candidate preference 
primary without regard to party affiliation and without requiring a 
public declaration of party preference. While the Wisconsin delegates 
to the National Convention are chosen separately, after the primary, at 
caucuses of persons who have stated their affiliation with the Demo- 
cratic Party, those delegates are bound to vote at the Convention in 
accord with the results of the open primary election. Thus, while Wis- 
consin's open Presidential preference primary does not itself violate the 
National Party's rules, the State's mandate that primary results shall 
determine the allocation of votes cast by the State's delegates at the 
National Convention does. When the National Party indicated that 
Wisconsin delegates would not be seated at the 1980 National Conven- 
tion because the Wisconsin delegate selection system violated the Na- 
tional Party's rules, an original action was brought in the Wisconsin 
Supreme Court on behalf of the State, seeking a declaration that such 
system was constitutional as applied to appellants (the National Party 
and Democratic National Committee) and that they could not law- 
fully refuse to seat the Wisconsin delegation. Concluding, inter alia, 
that the State had not impennissibly impaired the National Party's 
freedom of political association protected by the First and Fourteenth 
Amendments, the Wisconsin Supreme Court held that the State's dele- 
gate selection system was constitutional and binding upon appellants 
and that they could not refuse to seat delegates chosen in accord with 
Wisconsin law. 

Held: Wisconsin cannot constitutionally compel the National Party to 
seat a delegation chosen in a way that violates the Party's rules. 
Cousins v. Wigoda, 419 U. S. 477, controlling. Pp. 120-126. 

(a) The National Party and its adherents enjoy a constitutionally 
protected right of political association under the First Amendment, and 



108 OCTOBER TERM, 1980 

Syllabus 450 U 8. 

this freedom to gather in association for the purpose of advancing 
shared beliefs is protected by the Fourteenth Amendment from infringe- 
ment by any State, and necessarily presupposes the freedom to identify 
the people who constitute the association and to- limit the association 
to those people only. Here, the members of the National Party, speak- 
ing through their rules, chose to define their associational rights by limit- 
ing those who could participate in any binding process leading to the 
selection of delegates to their National Convention. Pp 120-122. 

(b) Wisconsin's asserted compelling interests in preserving the overall 
integrity of the electoral process, providing secrecy of the ballot, increas- 
ing voter participation in primaries, and preventing harassment of 
voters, go to the conduct of the open Presidential preference primary, 
not to the imposition of voting requirements upon those who, in a 
separate process, are eventually selected as delegates. Therefore, such 
asserted interests do not justify the State's substantial intrusion into the 
associational freedom of members of the National Party. Pp. 124-126. 
93 Wis. 2d 473, 287 N. W. 2d 519, reversed. 

STEWART, J., delivered the opinion of the Court, in which BURGER, C. J., 
and BRENNAN, WHITE, MARSHALL, and STEVENS, JJ., joined. POWELL, J., 
filed a dissenting opinion, in which BLACKMTJN and REHNQUIST, JJ., 
joined, post, p. 126. 

Ronald D. Eastman argued the cause for appellants. With 
him on the briefs was Lynda S. Mounts. 

Bronson C. La Follette, Attorney General, argued the cause 
for appellee State of Wisconsin. With him on the brief were 
Charles Hoornstra, F. Joseph Sensenbrenner, Jr., and Nancy 
L. Arnold, Assistant Attorneys General. Robert H. Friebert 
argued the cause for appellee Democratic Party of Wisconsin. 
With him on the brief was Carol Skornicka* 



*Thomas F. NeaLon III filed a brief for The Democratic Conference as 
amicus curiae urging reversal. 

Briefs of amid curiae urging affirmance were filed by Slade Gorton, 
Attorney General of Washington, Thomas R. Bjorgen, Assistant Attorney 
General, Mike Greely, Attorney General of Montana, and Mike McGrath, 
Assistant Attorney General, for the State of Washington et al.; and by 
David C. Vladeck and Alan B. Morrison for James MacDonald et al. 



DEMOCRATIC PARTY OF U. S. v. WISCONSIN 109 

107 Opinion of the Court 

JUSTICE STEWART delivered the opinion of the Court. 

The charter of the appellant Democratic Party of the 
United States (National Party) provides that delegates to 
its National Convention shall be chosen through procedures 
in which only Democrats can participate. Consistently with 
the charter, the National Party's Delegate Selection Rules 
provide that only those who are willing to affiliate publicly 
with the Democratic Party may participate in the process 
of selecting delegates to the Party's National Convention. 
The question on this appeal is whether Wisconsin may 
successfully insist that its delegates to the Convention be 
seated, even though those delegates are chosen through a 
process that includes a binding state preference primary elec- 
tion in which voters do not declare their party affiliation. 
The Wisconsin Supreme Court held that the National Con- 
vention is bound by the Wisconsin primary election results, 
and cannot refuse to seat the delegates chosen in accord with 
Wisconsin law. 93 Wis. 2d 473, 287 N. W. 2d 519. 

I 

Rule 2A of the Democratic Selection Rules for the 1980 Na- 
tional Convention states: "Participation in the delegate selec- 
tion process in primaries or caucuses shall be restricted to 
Democratic voters only who publicly declare their party pref- 
erence and have that preference publicly recorded." * Under 



1 E.ule 2A provides in full: 

"Participation in the delegate selection process in primaries or caucuses 
shall be restricted to Democratic voters only who publicly declare their 
party preference and have that preference publicly recorded. Documen- 
tary evidence of a process which complies with this rule shall accompany 
all state Delegate Selection Plans upon their submission to the National 
Party. Such rules, when approved by the Compliance Review Commis- 
sion and implemented shall constitute adequate provisions within the 
meaning of Section 9 of the 1972 Democratic National Convention 
mandate/' 



110 OCTOBER TERM, 1980 

Opinion of the Court 450 U. S. 

National Party rules, the "delegate selection process" in- 
cludes any procedure by which delegates to the Convention 
are bound to vote for the nomination of particular candidates. 2 
The election laws of Wisconsin 3 allow non-Democrats 



2 Rule 12B of the Delegate Selection Rules for the 1980 Democratic Na- 
tional Convention provides in part: 

"At all stages of the delegates selection process, delegates shall be allo- 
cated in a fashion that fairly reflects the expressed presidential preference 
or uncommitted status of the primary voters or if there is no binding pri- 
mary, the convention and caucus participants except that preferences se- 
curing less than the applicable percentage of votes cast for the delegates 
to the National Convention shall not be awarded any delegates." 
Rule 12D provides in full: 

'Tor the purpose of fairly reflecting the division of preferences, the non- 
binding advisory presidential preference portion of primaries shall not be 
considered a step in the delegate selection process/' (Emphasis added.) 

3 Wisconsin's election laws are contained in Wis. Stat., Tit. II, chs. 5-12 
(1977). The laws in issue in this case relate to the Presidential preference 
vote at the spring election, held on the first Tuesday in April in each year 
in which the Electors for President and Vice President are to be chosen. 
The relevant provisions are as follows: 

"5.37 Voting machine requirements. 

"(4) Voting machines may be used at primary elections when they 
comply with . . . the following provisions: All candidates' names entitled 
to appear on the ballots at the primary shall appear on the machines; the 
elector cannot vote for candidates of more than one party, whenever the 
restriction applies, and an elector who votes for candidates of any party 
may not vote for independent candidates at the September primary; the 
elector may secretly select the party for which he or she wishes to vote, or 
the independent candidates in the case of the September primary; the 
elector may vote for as many candidates for each office as he or she is 
lawfully entitled to vote for, but no more. 



"5.60 Spring election ballots. At spring elections the following ballots, 
when necessary, shall be provided for each ward. 

"(S) BALLOTS FOR PRESIDENTIAL VOTE. There shall be a separate ballot 
for each party . . . listing the names of all potential candidates of that 
party . . . and affording, in addition, an opportunity to the voter to 



DEMOCRATIC PARTY OF U. S. v. WISCONSIN 111 

107 Opinion of the Court 

including members of other parties and independents to vote 
in the Democratic primary without regard to party affiliation 
and without requiring a public declaration of party preference. 
The voters in Wisconsin's "open 334 primary express their 

nominate another potential candidate by write-in vote or. to vote against 
the choices offered on the ballot . Each voter shall be given the ballots 
of all the parties participating in the presidential preference vote, but may 
vote on one ballot only. 

* 

"8.12 Presidential preference vote. 

"(3) DELEGATES TO NATIONAL CONVENTION", (a) In canvassing the 
presidential preference vote, the specific candidate for president receiving 
a plurality in any district or in the state at large is entitled to control all 
the delegates representing such area ... As an alternative to this proce- 
dure, the state chairperson of any political party having a presidential 
preference ballot mav inform the board . . . that the delegates from such 
party are to be certified on the basis of proportional representation. In 
such case, each presidential candidate shall be apportioned delegates com- 
mitted to support him or her as nearly as possible in accordance with the 
percentage of the vote in a district or in the state at large which such 
candidate receives. . . . 

* 

[8.12 (3) (b) and 8.12 (3) (c) 5 are described in n. 6, infra] 

* 

"(am) No later than the last Monday in April following the presidential 
preference vote, the board shall notify each state party organization 
chairperson ... of the results of the presidential preference vote 
cast within his or her party, and the number of delegates from each 
congressional district and from the state at large which are to be 
pledged to each presidential candidate and the number which are to be 
uninstructed." 

4 What characterizes the Wisconsin primary as "open" is that the 
"voter is not required to declare publicly a party preference or to have 
that preference publicly recorded/' 93 Wis. 2d 473, 485, 287 N. W. 2d 
519, 523. See Wis Stat. 5.60 (8), 10.02 (3) (1977). "The major char- 
acteristic of open primaries is that any registered voter can vote in the 
primary of either party." R. Blank, Political Parties, An Introduction 
316 (1980). "The states with open primaries [including Wisconsin] allow 
any qualified voter to participate in a party primary without designating 



112 OCTOBER TERM, 1980 

Opinion of the Court 450 U. S. 

choice among Presidential candidates for the Democratic 
Party's nomination; they do not vote for delegates to the 
National Convention. Delegates to the National Convention 
are chosen separately, after the primary, at caucuses of per- 
sons who have stated their affiliation with the Party, 5 But 
these delegates, under Wisconsin law, are bound to vote at the 
National Convention in accord with the results of the open 
primary election.* Accordingly, while Wisconsin's open Pre&- 
idential preference primary does not itself violate National 
Party rules, 7 the State's mandate that the results of the pri- 
mary shall determine the allocation of votes cast by the State's 
delegates at the National Convention does. 

In May 1979, the Democratic Party of Wisconsin (State 
Party) submitted to the Compliance Review Commission of 
the National Party its plan for selecting delegates to the 
1980 National Convention. The plan incorporated the pro- 
visions of the State's open primary laws, and, as a result, the 
Commission disapproved it as violating Rule 2A. 8 Since 
compliance with Rule 2A was a condition of participation at 

party affiliation or preference." D Ippolito & T. Walker, Political Parties, 
Interest Groups, and Public Policy: Group Influence in American Politics 
175 (1980). 

5 The State Party limits participation in the selection of delegates to 
the National Convention to "persons who are willing to subscribe to the 
general principles of the Democratic Party and do so publicly by execut- 
ing an appropriate statement to that effect." 93 Wis. 2d, at 486, 287 
N W. 2d, at 524 

6 The Convention delegates are bound for a limited period by the out- 
come of the Presidential preference vote in their respective districts or by 
the outcome of the total Presidential vote in the State at large. Wis. Stat, 
8.12 (3) (b) (1977). Each delegate must pledge to support the candidate 
to whom the delegate is bound and to vote for that candidate on the first 
ballot and on any additional ballot, unless the candidate dies or releases 
the delegate or until the candidate fails to receive at least one-third of the 
votes authorized to be cast. Thereafter the delegate's vote at the Con- 
vention is based on personal preference. 8,12 (3) (c) 5. 

7 Cf. Rule 12D, at n. 2, supra. 

8 See n. 1, supra. 



DEMOCRATIC PARTY OF U. S. v. WISCONSIN 113 

107 Opinion of the Court 

the Convention, for which no exception could be made, 9 the 
National Party indicated that Wisconsin delegates who were 
bound to vote according to the results of the open primary 
would not be seated. 

The State Attorney General then brought an original action 
in the Wisconsin Supreme Court on behalf of the State. 
Named as respondents in the suit were the National Party 
and the Democratic National Committee, who are the appel- 
lants in this Court, and the State Party, an appellee here. 
The State sought a declaration that the Wisconsin delegate 
selection system was constitutional as applied to the appel- 
lants and that the appellants could not lawfully refuse to seat 
the Wisconsin delegation at the Convention. The State 
Party responded by agreeing that state law may validly be 
applied against it and the National Party, and cross-claimed 
against the National Party, asking the court to order the Na- 
tional Party to recognize the delegates selected in accord with 
Wisconsin law. The National Party argued that under the 
First and Fourteenth Amendments it could not be compelled 
to seat the Wisconsin delegation in violation of Party rules. 

The Wisconsin Supreme Court entered a judgment declar- 
ing that the State's system of selecting delegates to the 
Democratic National Convention is constitutional and binding 
on the appellants. 93 Wis. 2d 473, 287 N. W. 2d 519. The 
court assumed that the National Party's freedom of political 
association, protected by the First and Fourteenth Amend- 
ments, gave it the right to restrict participation in the process 
of choosing Presidential and Vice Presidential candidates to 
Democrats. Id., at 511-512, 287 N. W. 2d, at 536. It con- 
cluded, however, that the State had not impermissibly im- 
paired that right. The court said that the State's primary 
election laws were themselves intended to permit persons to 
vote only for the candidates of the party they preferred, and 

RuIe 2B precludes any exemption from Rule 2A requirements. See 
n. 20 and accompanying text, infra. 



114 OCTOBER TERM, 1980 

Opinion of the Court 450 TLS. 

that, as a practical matter, requiring a public declaration of 
party affiliation would not prevent persons who are not Demo- 
crats from voting in the primary. 10 Moreover, the court rea- 
soned that to whatever extent appellants' constitutional 
freedom of political association might be burdened by the 
Wisconsin election laws, the burden was justified by the 
State's "compelling . . . interest in maintaining the special 
feature of its primary . . . which permits private declaration 
of party preference." Id., at 521, 287 N. W. 2d, at 541. 

The court declared that the votes of the state delegation at 
the National Convention for Presidential and Vice Presiden- 
tial candidates must be apportioned and cast as prescribed by 
Wisconsin law, and that the State's delegates could not for 
that reason be disqualified from being seated at the Conven- 
tion. 11 The National Party and the Democratic National 
Committee then brought this appeal under 28 U. S. C. 
1257 (2). 

Wisconsin held its primary on April 1, 1980, in accord with 
its election laws. Subsequently, the State Party chose dele- 
gates to the 1980 Democratic National Convention, in com- 
pliance with the order of the Wisconsin Supreme Court and 
Wis. Stat. 8.12 (3) (b), (3) (c) 5 (1977). This Court noted 
probable jurisdiction of the appeal on July 2, 1980. 448 U. S. 
909. On the same day, the Court stayed the judgment of 

10 The court reasoned that because a primary voter must vote on only 
one party's ballot, he effectively declares his affiliation, albeit privately. 

11 The order of the Wisconsin Supreme Court was as follows: 

"It is adjudged and declared that the Wisconsin electoral statutes in- 
volved in this controversy are constitutional, in full force and effect and 
binding on the petitioner and respondents; that the presidential prefer- 
ence primary shall be conducted in accordance with the Wisconsin stat- 
utes; and that Wisconsin delegates to the Democratic Party national con- 
vention shall be apportioned as required by statute in accordance with 
the results of the presidential preference vote and are not disqualified as 
delegates solely by reason of the apportionment being determined as re- 
quired by the Wisconsin statutes." 93 Wis. 2d, at 525-526, 287 N. W. 2d, 
at 548. 



DEMOCRATIC PARTY OF U. S, v. WISCONSIN 115 

107 Opinion of the Court 

the Wisconsin Supreme Court. On July 20, 1980, the Cre- 
dentials Committee of the National Convention decided to 
seat the delegates from Wisconsin, despite this Court's stay, 12 
and despite the delegates' selection in a manner that violated 
Rule 2A. 13 

II 

Rule 2A can be traced to efforts of the National Party to 
study and reform its nominating procedures and internal 
structure after the 1968 Democratic National Convention. 14 



12 In oral argument, counsel for the National Party asserted that the 
Party did not have the time or resources, at that late date, to establish a 
procedure to select an alternative slate of delegates. 

13 This case is not moot. The Wisconsin Supreme Court's order is not 
explicitly limited to the 1980 Convention. The effect of the order "re- 
mains and controls future elections." Moore v. Ogilvie, 394 U. S. 814, 
816. In any event, even if the order were clearly limited to the 1980 elec- 
tion year, the controversy would be properly before us as one "capable 
of repetition, yet evading review " Rosario v. Rockefeller, 410 U, S. 752, 
756, n. 5; Dunn v. Blumstein, 405 U. S. 330, 333, n. 2. 

14 Wisconsin's open primary system has a history far longer than that 
of Rule 2A of the National Party. The open primary was adopted in 
1903, and in the words of the Wisconsin Supreme Court, it has "func- 
tioned well" ever since. 93 Wis 2d, at 514, 287 N. W. 2d, at 537. The 
open primary is employed in Wisconsin not only to express preference for 
Presidential candidates, but to choose "partisan . . . state and local candi- 
dates . . . and an extensive array of nonpartisan officers" as well. Ibid. 
For a history of Wisconsin's open primary, see Part II of the Wisconsin 
Supreme Court opinion. Id., at 491-495, 287 N. W. 2d, at 526-528. See 
also Berdahl, Party Membership in the United States, 36 Am. PoL Sci. 
Rev. 16, 39-41 (1942). 

Wisconsin's open primary apparently is still very popular. On Sep- 
tember 5, 1979, by a unanimous vote of its Senate and a 92-1 vote of 
its Assembly, the Wisconsin Legislature reaffirmed by joint resolution the 
"firm and enduring commitment of the people of Wisconsin to the open 
presidential preference primary law as an integral element of Wisconsin's 
proud tradition of direct and effective participatory democracy." And on 
September 14, 1979, a bill to create a modified closed primary was de- 
feated in committee. 93 Wis. 2d, at 490, n. 14, 287 N. W. 2d, at 526, 
n. 14. 



116 OCTOBER TERM, 1980 

Opinion of the Court 460 U.S. 

The Convention, the Party's highest governing authority, 
directed the Democratic National Committee (DNC) to es- 
tablish a Commission on Party Structure and Delegate Selec- 
tion (McGovern/Fraser Commission). This Commission con- 
cluded that a major problem faced by the Party was that 
rank-and-file Party members had been underrepresented at 
its Convention, and that the Party should "find methods 
which would guarantee every American who claims a stake in 
the Democratic Party the opportunity to make his judgment 
felt in the presidential nominating process." Commission on 
Party Structure and Delegate Selection, Mandate for Reform : 
A Report of the Commission on Party Structure and Delegate 
Selection to the Democratic National Committee 8 (Apr. 
1970) (emphasis added) (hereafter Mandate for Reform). 
The Commission stressed that Party nominating procedures 
should be as open and accessible as possible to all persons who 
wished to join the Party, 15 but expressed the concern that 
"a full opportunity for all Democrats to participate is diluted 
if members of other political parties are allowed to participate 



15 The McGovern/Fraser Commission adopted guidelines to eliminate 
state party practices that limited the access of rank-and-file Democrats 
to the candidate selection procedures, as well as those that tended to 
dilute the influence of each Democrat who took advantage of expanded 
opportunities to participate. Mandate for Reform, at 12. For example, 
the guidelines required that the delegates ultimately chosen, and their 
apportionment to particular candidates, had to reflect the candidate pref- 
erences of Democrats participating at all levels of the selection process. 
Id., at 44. Among other measures recommended by the Commission were 
(1) the abolition of the unit rule at any stage of the delegate selection 
process so that majorities could not bind dissenting minorities to vote in 
accordance with majority wishes; (2) adequate public notice of times and 
places of meetings related to the delegate selection process; (3) the re- 
quirement that ballots indicate the Presidential preference of candidates, 
or of slates of delegates; and (4) the prohibition of discrimination against 
racial minorities, women, and young people Id., at 44-46. See also 
Segal, Delegate Selection Standards: The Democratic Party's Experience, 
38 Geo. Wash. L. Rev. 873, 880-881 (1970). 



DEMOCRATIC PARTY OF U. S. v. WISCONSIN 117 

107 Opinion of the Court 

in the selection of delegates to the Democratic National Con- 
vention." 7<2.,at47. 16 

The 1972 Democratic National Convention also established 
a Commission on Delegate Selection and Party Structure 
(Mikulski Commission). This Commission reiterated many 
of the principles announced by the McGovern/Fraser Com- 
mission, but went further to propose binding rules directing 
state parties to restrict participation in the delegate selection 
process to Democratic voters. Commission on Delegate Se- 
lection and Party Structure, Democrats All: A Report of the 
Commission on Delegate Selection and Party Structure 2, 15 
(Dec. 6, 1973) (hereafter Democrats All). The DNC incor- 
porated these recommendations into the Delegate Selection 
Rules for the 1976 Convention. In 1974, the National Party 
adopted its charter and by-laws. The charter set the fol- 
lowing qualifications for delegates to the Party's national 
conventions : 

"The National Convention shall be composed of delegates 
who are chosen through processes which (i) assure all 
Democratic voters full, timely and equal opportunity to 
participate and include affirmative action programs to- 
ward that end, (ii) assure that delegations fairly reflect 
the division of preferences expressed by those who par- 
ticipate in the presidential nominating process, . . . [and] 
(v) restrict participation to Democrats only . . . " 
Democratic National Committee, Charter of the Demo- 
cratic Party of the United States, Art. Two, 4 (em- 
phasis added). 

16 The recommendations of the McGovern/Fraser Commission were sub- 
sequently incorporated into the Call to the 1972 Convention, which set 
forth the formal requirements of the delegate selection and nominating 
processes for the Convention. They were also favorably received by at 
least one group monitoring their implementation at the 1972 Democratic 
National Convention. See Americans for Democratic Action, "Let TJs 
Continue . . .", A Report on the Democratic Party's Delegate Selection 
Guidelines (1973). 



118 OCTOBER TERM, 1980 

Opinion of the Court 450 TJ. S. 

Rule 2A took its present form in 1976. Consistent with 
the charter, it restricted participation in the delegate selec- 
tion process in primaries or caucuses to "Democratic voters 
only who publicly declare their party preference and have 
that preference publicly recorded." But the 1976 Delegate 
Selection Rules allowed for an exemption from any rule, 
including Rule 2A, that was inconsistent with state law if 
the state party was unable to secure changes in the law. 17 

In 1975, the Party established yet another commission to 
review its nominating procedures, the Commission on Presi- 
dential Nomination and Party Structure (Winograd Com- 
mission). This Commission was particularly concerned with 
what it believed to be the dilution of the voting strength of 
Party members in States sponsoring open or "crossover" pri- 
maries. 18 Indeed, the Commission based its concern in part 
on a study of voting behavior in Wisconsin's open primary. 
See Adamany, Cross-Over Voting and the Democratic Party's 
Reform Rules, 70 Am. Pol. Sci. Rev. 536, 538-539 (1976). 

The Adamany study, assessing the Wisconsin Democratic 
primaries from 1964 to 1972, found that crossover voters 
comprised 26% to 34% of the primary voters; that the voting 
patterns of crossover voters differed significantly from those of 
participants who identified themselves as Democrats; "and 
that crossover voters altered the composition of the delegate 
slate chosen from Wisconsin, 10 The Winograd Commission 



17 Under Rule 20 state parties must take "provable positive stops to 
achie\ r e legislative changes to bring the state law into compliance with 
the provisions of these rules." If a state party takes such provable posi- 
tive steps but is unable to obtain the necessary legislative changes, the 
state party may bo eligible for a Rule 20 exemption. In 1976, the Wiscon- 
sin State Party obtained such an exemption from the 1976 version of 
Rule 2A. 

18 A crossover primary is one that permits nonadherents of a party to 
"cross over" and vote in that party's primary. 

10 In 1964, crossovers made up 26% of the participants in the Wiscon- 
sin Democratic primary. Seven percent of those identifying themselves 



DEMOCRATIC PARTY OF U. S. v. WISCONSIN 119 

107 Opinion of the Court 

thus recommended that the Party strengthen its rules against 
crossover voting, Openness, Participation and Party Building: 
Reforms for a Stronger Democratic Party 68 (Feb. 17, 1978) 
(hereafter Openness, Participation), predicting that continued 
crossover voting "could result in a convention delegation 
which did not fairly reflect the division of preferences among 
Democratic identifiers in the electorate." Ibid. And it spe- 
cifically recommended that "participation in the delegate 
selection process in primaries or caucuses ... be restricted 
to Democratic voters only who publicly declare their party 
preference and have that preference publicly recorded." Id., 
at 69. Accordingly, the text of Rule 2A was retained, but a 
new Rule, 2B, was added, prohibiting any exemptions from 



as Democrats voted for Governor George Wallace, but 62% of the cross- 
overs voted for him. Three-quarters of Governor Wallace's support in the 
Democratic primary came from crossover voters. Adamany, Cross-Over 
Voting and the Democratic Party's Reform Rules, 70 Am. Pol. Sci. Rev. 
536, 541 (1976). ' 

In 1968, crossovers constituted 28% of the participants in the Wiscon- 
sin Democratic primary. Forty-eight percent of those who said they were 
Democrats voted for Senator Eugene McCarthy, while 39% voted for 
President Johnson. Of the crossovers, however, 70% voted for Senator 
McCarthy, while only 14% voted for President Johnscm. Participation 
of crossovers increased Senator McCarthy's margin of victory over Presi- 
dent Johnson in Wisconsin by 2% times. Id., at 539. 

In 1972, crossovers amounted to 34% of the participants. Fifty-one 
percent of the self-identified Democrats voted for Senator George Mc- 
Govern, while only 7% voted for Governor Wallace. Of the crossovers, 
however, only 33% voted for Senator McGovern, while 29% voted for 
Governor Wallace. The study figures indicate that two-thirds of Governor 
Wallace's support in the Democratic primary came from crossover voters. 
Ibid. The study found that "the participation of crossover voters will . . . 
alter the composition of national convention delegations." Id., at 540. 

These data, of course, are relevant only insofar as they help to explain 
the derivation of Rule 2A. The application of Rule 2A to the delegate 
selection procedures of any State is not in any way dependent on the 
pattern or history of voting behavior in that State. 



120 OCTOBER TERM, 1980 

Opinion of the Court 450 U. S. 

Rule 2A. Delegate Selection Rules for the 1980 Democratic 
Convention, Rule 2B. 20 

Ill 

The question in this case is not whether Wisconsin may 
conduct an open primary election if it chooses to do so, or 
whether the National Party may require Wisconsin to limit 
its primary election to publicly declared Democrats. 21 Rather, 
the question is whether, once Wisconsin has opened its Demo- 
cratic Presidential preference primary to voters who do not 
publicly declare their party affiliation, it may then bind the 
National Party to honor the binding primary results, even 
though those results were reached in a manner contrary to 
National Party rules. 

The Wisconsin Supreme Court considered the question be- 
fore it to be the constitutionality of the "open" feature of the 
state primary election law, as such. Concluding that the 



20 Rule 2A was the only rule applicable to the 1980 Convention that 
permitted no exemption. Rule 2B reads m full: "A Rule 20 exemption 
[see n. 17, supra] shall not be granted from Rule 2A requirements." 

21 In its answer to the complaint filed by the Wisconsin Attorney Gen- 
eral, the National Party stated that it would "recognise only those dele- 
gate votes at the 1980 Convention which are the product of delegate selec- 
tion processes, whether in binding primaries, conventions, or eaiicuses, 
which are restricted to Democratic voters who publicly declare their party 
preference and have that preference publicly recorded." The National 
Party nowhere indicated that the Wisconsin primary cannot be open; it 
averred only that any proceas adopted by the State that binds the Na- 
tional Party must comply with Party rules. And in the joint stipulation 
of facts before the Wisconsin Supreme Court, the National Party did not 
declare that Wisconsin must abandon its open primary. The National 
Party said only that if Wisconsin does not change its primary laws by 
requiring public party declaration consistent with Party rules, it would be 
satisfied with some other, Partv-run, delegate selection system thai did 
comply with Party rules. This statement is consistent with Rule 2C of 
the 1980 Delegate Selection Rules, which provides that "fa] State Party 
which is precluded by state statute from complying with this rule F2A1, 
shall adopt and implement an alternative Party-run delegate selection sys- 
tem which complies with this rule/' Cf, Rule 20, at n. 17, supra. 



DEMOCRATIC PARTY OF U. S v. WISCONSIN 121 

107 Opinion of the Court 

open primary serves compelling state interests by encourag- 
ing voter participation, the court held the state open primary 
constitutionally valid. Upon this issue, the Wisconsin Su- 
preme Court may well be correct. In any event, there is no 
need to question its conclusion here. For the rules of the 
National Party do not challenge the authority of a State to 
conduct an open primary, so long as it is not binding on the 
National Party Convention. The issue is whether the State 
may compel the National Party to seat a delegation chosen 
in a way that violates the rules of the Party. And this issue 
was resolved, we believe, in Cousins v. Wigoda, 419 U. S. 477. 

In Cousins the Court reviewed the decision of an Illinois 
court holding that state law exclusively governed the seating 
of a state delegation at the 1972 Democratic National Con- 
vention, and enjoining the National Party from refusing to 
seat delegates selected in a manner in accord with state law 
although contrary to National Party rules. Certiorari was 
granted "to decide the important question . . . whether the 
[alppellate [c]ourt was correct in according primacy to state 
law over the National Political Party's rules in the determina- 
tion of the qualifications and eligibility of delegates to the 
Party's National Convention/' Id., at 483. The Court re- 
versed the state judgment, holding that "Illinois' interest in 
protecting the integrity of its electoral process cannot be 
deemed compelling in the context of the selection of delegates 
to the National Party Convention. 3 ' Id., at 491. That dis- 
position controls here. 

The Cousins Court relied upon the principle that "[t]he 
National Democratic Party and its adherents enjoy a consti- 
tutionally protected right of political association." Id., at 
487. See also, id., at 491 (REHNQUIST, J., concurring). This 
First Amendment freedom to gather in association for the 
purpose of advancing shared beliefs is protected by the Four- 
teenth Amendment from infringement by any State. Kusper 
v. Pontikes, 414 U. S. 51, 57; Williams v, Rhodes, 383 U. S. 
23, 30-31, See also NAACP v. Alabama ex rel Patterson, 



122 OCTOBER TERM, 1980 

Opinion of the Court 450 IT. S. 

357 U. S. 449, 460. And the freedom to associate for the 
"common advancement of political beliefs/' Kusper v. Pon- 
tikes, supra, at 56, necessarily presupposes the freedom to 
identify the people who constitute the association, and to 
limit the association to those people only. 22 "Any interfer- 
ence with the freedom of a party is simultaneously an inter- 
ference with the freedom of its adherents." Sweezy v. New 
Hampshire, 354 U. S. 234, 250; see NAACP v. Button, 371 
U. S. 415, 431. 

Here, the members of the National Party, speaking through 
their rules, chose to define their associational rights by limit- 
ing those who could participate in the processes leading to 
the selection of delegates to their National Convention. On 
several occasions this Court has recognized that the inclusion 
of persons unaffiliated with a political party may seriously 
distort its collective decisions thus impairing the party's es- 
sential functions and that political parties may accordingly 
protect themselves "from intrusion by those with adverse 
political principles." Ray v. Blair, 343 U. S. 214, 221-222. 
In Rosario v. Rockefeller, 410 U. S. 752, for example, the 
Court sustained the constitutionality of a requirement there 
imposed by a state statute that a voter enroll in the party 
of his choice at least 30 days before the general election in 
order to vote in the next party primary. The purpose of 
that statute was "to inhibit party 'raiding/ whereby voters 
in sympathy with one party designate themselves as voters 
of another party so as to influence or determine the results 
of the other party's primary. 7 ' Id., at 760. 23 See also Kusper 
v. Pontikes, supra, at 59-60. 



22 "Freedom of association would prove an empty guarantee if associa- 
tions could not limit control over their decirfons to those who share the 
interests and persuasions that underlie the association's being." L. Tribe, 
American Constitutional Law 791 (1978). 

23 The extent to which "raiding*' is a motivation of Wisconsin voters 
matters not. As the Winograd Commission acknowledged, "the existence 



107 Opinion of the Court 

The Wisconsin Supreme Court recognized these constitu- 
tional doctrines in stating that the National Party could ex- 
clude persons who are not Democrats from the procedures 
through which the Party's national candidates are actually 
chosen. 93 Wis. 2d, at 499, 287 N. W. 2d, at 530. But the 
court distinguished Cousins on the ground that this case "does 
not arise 'in the context of the selection of delegations to the 
National Party Convention. ...'"" Id., at 525, 287 N. W. 
2d, at 543. The court's order, however, unequivocally obli- 
gated the National Party to accept the delegation to the 
National Convention chosen in accord with Wisconsin law, 
despite contrary National Party rules. 

The State argues that its law places only a minor burden 
on the National Party. The National Party argues that 
the burden is substantial, because it prevents the Party from 
"screening] out those whose affiliation is ... slight, tenuous, 
or fleeting," and that such screening is essential to build a 
more effective and responsible Party. But it is not for the 
courts to mediate the merits of this dispute. For even if 
the State were correct, 25 a State, or a court, may not con- 



of 'raiding' has never been conclusively proven by survey research." 
Openness, Participation, at 68. The concern of the National Party is, 
rather, with crossover voters in general, regardless of their motivation. 

24 The appellees similarly argue that Cousins is inapposite. They con- 
tend that the decision in Cousins involved the direct election of individ- 
ual delegates to the National Convention, while this case does not. But 
appellees, like the Wisconsin Supreme Court, fail to recognize that the 
problem presented by this case is not the "openness" of Wisconsin's pri- 
mary in and of itself, but the binding effect of Wisconsin law on the 
freedom of the National Party to define its own eligibility standards. 

25 It may be the case, of course, that the public avowal of party affilia- 
tion required by Rule 2A provides no more assurance of party loyalty 
than does Wisconsin's requirement that a person vote in no more than one 
party's primary. But the stringency, and wisdom, of membership re- 
quirements is for the association and its members to decide not the 
courts so long as those requirements are otherwise constitutionally 
permissible. 



Opinion of the Court 450 II. S. 

stitutionally substitute its own judgment for that of the 
Party. A political party's choice among the various ways of 
determining the makeup of a State's delegation to the party's 
national convention is protected by the Constitution. 20 And 
as is true of all expressions of First Amendment freedoms, 
the courts may not interfere on the ground that they view a 
particular expression as unwise or irrational. 27 

IV 

We must consider, finally, whether the State has com- 
pelling interests that justify the imposition of its will upon 
the appellants. See Cousin*, 419 U. S., at 489. 28 "Neither 
the right to associate nor the right to participate in political 
activities is absolute." CSC v. Letter Carriers, 413 U. S. 548, 
567. The State asserts a compelling interest in preserving 
the overall integrity of the electoral process, providing secrecy 



20 Cf . Ripon Society, Inc v. National Republican Party, 173 U. S, App. 
D. C. 350, 368, 525 F. 2d 567, 585 (en bane) ("[A] party's choice, as 
among various ways of governing itself, of the one which seems best cal- 
culated to strengthen the party and advance its interests, deserves the 
protection of the Constitution . .") (emphasis of the court), cert, denied, 
424 U. S. 933. 

27 The State Party argues at length that empirical data do not support 
the National Party's need for Rule 2A. That argument should be ad- 
dressed to the National Party which has studied the need for something 
like Rule 2A for 12 years, see Part II, supra and not to the judiciary. 

The State also contends that the National Party should not be able 
to prevent "principled crossovers" from influencing the selection of its 
candidate, and that the appellants have not presented any evidence that 
"raiding" has been a problem. These contentions are irrelevant. See 
n. 23, supra. It is for the National Party and not the Wisconsin Legis- 
lature or any court to determine the appropriate standards for partici- 
pation in the Party's candidate selection process. 

28 Obviously, States have important interests in regulating primary 
elections, United States v. Classic, 313 U. S. 299. A State, for example, 
"has an interest, if not a duty, to protect the integrity of its political 
processes from frivolous or fraudulent candidacies." Bullock v. Carter, 
405 U. S, 134, 145. 



DEMOCRATIC PARTY OF U S. v. WISCONSIN 125 

107 Opinion of the Court 

of the ballot, increasing voter participation in primaries, and 
preventing harassment of voters. 29 But all those interests go 
to the conduct of the Presidential preference primary not to 
the imposition of voting requirements upon those who, in a 
separate process, are eventually selected as delegates. 30 
Therefore, the interests advanced by the State 31 do not justify 

29 The Wisconsin Supreme Court identified the interests of the State as 
follows: 

"The state's interest in maintaining a primary and in not restricting 
voting in the presidential preference primary to those who publicly de- 
clare and record their party preference as to preserve the overall integrity 
of the electoral process by encouraging increased voter participation in 
the political process and by providing secrecy of the ballot, thereby ensur- 
ing that the primary itself and the political party's participation in the 
primary are conducted in a fair and orderly manner " 93 Wis 2d, at 512, 
287 N. W. 2d, at 536. 

30 The State contends repeatedly that the issue whether it can prevent 
the National Party from determining the qualifications of National Con- 
vention delegates is not presented. But this contention utterly ignores 
the Wisconsin Supreme Court order, and Wis. Stat. 8.12 (3)(b), 3 (c) 5 
(1977). The State Party acknowledges near the end of its brief that 
"[p"]erhaps the real issue in this case is not whether Wisconsin can con- 
duct an open primary, but rather whether it can make the results of 
the open primary binding upon Wisconsin delegates to the National 
Convention." 

31 The State attempts to add constitutional weight to its claims with 
the authority conferred on the States by Art. II, 1, cl. 2, of the United 
States Constitution: "Ecich state shall appoint, in such Manner as the 
Legislatxire thereof may direct, a Number of Electors, equal to the whole 
Number of Senators and Representatives to which a State may be en- 
titled." See In re Green, 134 U, S. 377, 379; McPherson v. Blacker, 146 
XT. S. 1, 27-28; Ray v. Blair, 343 II. S. 214; Oregon v. Mitchell, 400 U. S. 
112, 291 (opinion of STEWART, J., joined by BURGER, C. J., and BLACKMITN, 
J.) ; see also Cousins v. Wigoda, 419 U. S. 477, 495-496 (REHNQUIST, J., 
concurring in result). Any connection between the process of selecting 
electors and the means by which political party members in a State asso- 
ciate to elect delegates to party nominating conventions is so remote and 
tenuous as to be wholly without constitutional significance. In Cousins, 
despite similar arguments by Illinois, all nine Justices agreed that a State 
could not constitutionally compel a national political convention to seat 



126 OCTOBER TERM, 1980 

POWELL, J., dissenting 450 U.S. 

its substantial 32 intrusion into the associational freedom of 
members of tho National Party. 

V 

The State has a substantial interest in the manner in which 
its elections are conducted, and the National Party has a 
substantial interest in the manner in which the delegates to 
its National Convention are selected. But these interests 
are not incompatible, and to the limited extent they clash in 
this case, both interests can be preserved. The National 
Party rules do not forbid Wisconsin to conduct an open 
primary. But if Wisconsin does open its primary, it cannot 
require that Wisconsin delegates to the National Party Con- 
vention vote there in accordance with the primary results, if 
to do so would violate Party rules. Since the Wisconsin 
Supreme Court has declared that the National Party cannot 
disqualify delegates who are bound to vote in accordance with 
the results of the Wisconsin open primary, its judgment is 
reversed. 

It is so ordered. 

JUSTICE PowEUi, with whom JUSTICE BLACKMUN and JUS- 
TICE REHNQUIST join, dissenting. 

Under Wisconsin law, the Wisconsin delegations to the 
Presidential nominating conventions of the two major polit- 
ical parties are required to cast their votes in a way that 



delegates against its will. See id., at 488; id., at 492 (RBHNQTJIBT, J., 
concurring in result); id., at 496 (POWELL, J., concurring in part and dis- 
senting in part). 

32 Because the actual selection of delegates is within the control of per- 
sons who publicly proclaim their allegiance to the Democratic Party, the 
Wisconsin Supreme Court apparently deduced that the effects of the open 
primary on the nominating process were minimal. But the court ignored 
the fact the critical fact in the case that under Wisconsin law state dele- 
gates are bound to cast their votes at the National Convention in accord 
with the open primary outcomes. 



DEMOCRATIC PARTY OF U. S. v WISCONSIN 127 

107 POWELL, J., dissenting 

reflects the outcome of the State's "open" primary election. 
That election is conducted without advance party registration 
or any public declaration of party affiliation, thus allowing 
any registered voter to participate in the process by which the 
Presidential preferences of the Wisconsin delegation to the 
Democratic National Convention are determined. The ques- 
tion in this case is whether, in light of the National Party's 
rule that only publicly declared Democrats may have a voice 
in the nomination process, Wisconsin's open primary law in- 
fringes the National Party's First Amendment rights of as- 
sociation. Because I believe that this law does not impose 
a substantial burden on the associational freedom of the Na- 
tional Party, and actually promotes the free political activity 
of the citizens of Wisconsin, I dissent. 



The Wisconsin open primary law was enacted in 1903. 
1903 Wis. Laws, ch. 451. It was amended two years later to 
apply to Presidential nominations. 1905 Wis. Laws, ch. 369. 
See 93 Wis. 2d 473, 492, 287 N. W. 2d 519, 527 (1980). As 
the Wisconsin Supreme Court described in its opinion below : 

"The primary was aimed at stimulating popular partici- 
pation in politics thereby ending boss rule, corruption, 
and fraudulent practices which were perceived to be part 
of the party caucus or convention system. Robert M. 
La Follette, Sr., supported the primary because he be- 
lieved that citizens should nominate the party candi- 
dates; that the citizens, not the party bosses, could con- 
trol the party by controlling the candidate selection 
process; and that the candidates and public officials 
would be more directly responsible to the citizens." Ibid. 

As noted in the opinion of the Court, the open primary law 
only recently has come into conflict with the rules of the 
National Democratic Party. The new Rule 2A was enacted 



128 OCTOBER TERM, 1980 

POWELL, J, dissenting 450 U.S. 

as part of a reform effort aimed at opening up the party to 
greater popular participation. This particular rule, however, 
has the ironic effect of calling into question a state law that 
was intended itself to opon up participation in the nominat- 
ing process and minimize the influence of "party bosses." 

II 

The analysis in this kind of First Amendment case lias two 
stages. If the law can bo said to impose a burden on the 
freedom of association, then the question becomes whether 
this burden is justified by a compelling state interest. E. g.. 
Bates v. Little Rock, 301 U. S. 516, 524 (1960). The Court 
in this case concludes that the Wisconsin law burdens as- 
sociational freedoms. It then appears to acknowledge that 
the interests asserted by Wisconsin are substantial, ante, at 
120-121, but argues that these interests "go to the conduct of 
the Presidential preference primary not to the imposition of 
voting requirements upon those who, in a separate process, 
are eventually selected as delegates/ 7 ante, at 125. In my 
view, however, any burden here is not constitutionally sig- 
nificant, and the State has presented at least a formidable 
argument linking the law to compelling state interests. 



In analyzing the burden imposed on associational freedoms 
in this case, the Court treats the Wisconsin law as the equiv- 
alent of one regulating delegate selection, and, relying on 
Cousins v. Wiffoda. 419 U. S. 477 (1975), concludes that 
any interference with the National Party's accepted delegate- 
selection procedures impinges on constitutionally protected 
rights. It is important to recognize, however, that the facts 
of this case present issues that differ considerably from those 
we dealt with in Cousins. 

In Cousins, wo reversed a determination that a state court 
could interfere with the Democratic Convention's freedom to 



DEMOCRATIC PARTY OF U. S. v. WISCONSIN 129 

107 POWELL, J., dissenting 

select one delegation from the State of Illinois over another. 
At issue in the case was the power of the National Party to 
reject a delegation chosen in accordance with state law be- 
cause the State's delegate-selection procedures violated party 
rules regarding participation of minorities, women, and young 
people, as well as other matters. See id., at 479, n. 1. The 
state court had ordered the Convention to seat the delegation 
chosen under state law, rather than the delegation preferred 
by the Convention itself. In contrast with the direct state 
regulation of the delegate-selection process at issue in Cous- 
ins, this case involves a state statutory scheme that regu- 
lates delegate selection only indirectly. Under Wisconsin 
law, the "method of selecting the delegates or alternates [is] 
determined by the state party organization/' Wis. Stat. 8.12 
(3)(b) (1977). Wisconsin simply mandates that each dele- 
gate selected, by whatever procedure, must be pledged to rep- 
resent a candidate who has won in the state primary election 
the right to delegate votes at the Convention. 1 

In sum, Wisconsin merely requires that the delegates "vote 
in accordance with the results of the Wisconsin open pri- 
mary." Ante, at 126. While this regulation affecting par- 
ticipation in the primary is hardly insignificant, it diifers 
substantially from the direct state interference in delegate 
selection at issue in Cousins. This difference serves to em- 
phasize the importance of close attention to the way in which 
a state law is said to impose a burden on a party's freedom 
of association. Cf. Marchioro v. Chaney, 442 U. S. 191, 199 
(1979). All that Wisconsin has done is to require the major 
parties to allow voters to affiliate with them for the limited 
purpose of participation in a primary secretly, in the pri- 



1 The delegates selected must be approved by the candidate they are to 
represent, Wis. Stat. 8.12 (3)(b) (1977), and must pledge that they are 
affiliated with the candidate's party and will support their candidate until 
he or she fails to receive at least one-third of the votes authorized to be 
cast at the Convention, 8.12 (3)(c). 



130 OCTOBER TERM, 1980 

POWELL, J , dissenting 450 U. S. 

vacy of the voting booth.- The Democrats remain free to 
require public affiliation from anyone wishing any greater 
degree of participation in party affairs. In Wisconsin, par- 
ticipation in the caucuses where delegates are selected is 
limited to publicly affiliated Democrats. Brief for Appellee 
Democratic Party of Wisconsin 19. And, as noted above, the 
State's law requires that delegates themselves affirm their 
membership in the party publicly. 

In evaluating the constitutional significance of this rela- 
tively minimal state regulation of party membership require- 
ments, I am unwilling at loast in the context of a claim by 
one of the two major political parties to conclude that every 
conflict between state law and party rules concerning par- 
ticipation in the nomination process creates a burden on as- 
sociational rights. Instead, I would look closely at the nature 



2 It is not fullv accurate to say, as the Court docs, that the "election 
laws of Wisconsin allow non-Democrats including members of other par- 
ties and independents to vote in the Democratic primary." Ante, at 
110-111. The Wisconsin statute states that "liln each year in which elec- 
tors for president and vice president are to be elected, the voters of this 
state shall at the spring election be given an opportunity to express their 
preference for the person to be the presidential candidate of their party." 
Wis. Stat. 8 12 (1) (1977) (emphasis added). Thus, the act of voting in 
the Democratic primary fairly can be described as an act of affiliation with 
the Democratic Party. The real issue in this case is whether the Party haw 
the right to decide that only public!]/ affiliated voters may participate. 

The situation might be different in those States with "blanket" pri- 
maries i. e., those where voters are allowed to participate in the primaries 
of more than one party on a single occasion, selecting the primary they 
wish to vote in with respect to each individual elective office. E. p., Wash. 
Rev. Code 29.18200 (1976). Cf. 93 Wis. 2d 473, 504, 287 N. W. 2d 519, 
532 (1980) ("["T]he legislature has taken steps to encourage* voters to 
participate in tho primary of their party and to discourage u voter of one 
party from being tempted to vote in the primary of another party. 
Limiting voters to only one party's ballot discourages voters from voting 
on a ballot of a party other than their own, because in order to do so they 
would have to sacrifice their opportunity to participate in their own party's 
selection process"). 



DEMOCRATIC PARTY OF U S. v. WISCONSIN 131 

107 POWELL, J., dissenting 

of the intrusion, in light of the nature of the association in- 
volved, to see whether we are presented with a real limitation 
on First Amendment freedoms. 

It goes without saying that nomination of a candidate for 
President is a principal function performed by a national 
political party, and Wisconsin has, to an extent, regulated the 
terms on which a citizen may become a "member" of the 
group of people permitted to influence that decision. If ap- 
pellant National Party were an organization with a particul- 
lar ideological orientation or political mission, perhaps this 
regulation would present a different question. 3 In such a 
case, the state law might well open the organization to par- 
ticipation by persons with incompatible beliefs and interfere 
with the associational rights of its founders. 

The Democratic Party, however, is not organized around 
the achievement of defined ideological goals. Instead, the 
major parties in this country "have been characterized by a 
fluidity and overlap of philosophy and membership." Ros&- 
rio v. Rockefeller, 410 U. S. 752, 769 (1973) (POWELL, J., dis- 
senting). It can hardly be denied that this Party generally 
has been composed of various elements reflecting most of the 
American political spectrum. 4 The Party does take positions 



3 Compare NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 462-463 
(1958), where the Court was careful to assess the effect of a membership 
disclosure requirement on associational freedoms in light of the particular 
nature of the organization involved and the likely responses of those 
opposed to its aims. 

4 See R. Horn, Groups and the Constitution 103-104 (1956) ; A. Camp- 
bell, P. Converse, W Miller, & D. Stokes, The American Voter 183-187, 
543 (1960) ; Developments in the Law: Elections, 88 Harv. L. Rev. 1111, 
1166 (1975). The Charter of the National Democratic Party states that 
it is "open to all who desire to support the party and . . be known as 
Democrats." Art. Ten, 1. 

This perception need not be taken as a criticism of the American party 
structure. The major parties have played a key role in forming coalitions 
and creating consensus on national issues. "Broad-based political parties 
supply an essential coherence and flexibility to the American political 



132 OCTOBER TERM, 1980 

POWELL, J., dissenting 450 U. S. 

on public issues, but these positions vary from time to time, 
and there never has been a serious effort to establish for the 
Party a monolithic ideological identity by excluding; all those 
with differing views. As a result, it is hard to see what the 
Democratic Party has to fear from an open primary plan. 
Wisconsin's law may influence to some extent the outcome of 
a primary contest by allowing participation by voters who are 
unwilling to affiliate with the Party publicly. It is unlikely, 
however, that this influence will produce a delegation with 
preferences that differ from those represented by a substan- 
tial number of delegates from other parts of the country. 
Moreover, it seems reasonable to conclude that, insofar as 
the major parties do have ideological identities, an open pri- 
mary merely allows relatively independent voters to cast their 
lot with the party that speaks to their present concerns. 5 



scene. They serve as coalitions of different interests that combine to seek 
national goals." Branti v. Finkel, 445 U. S. 507, 532 (1980) (POWELL, J., 
dissenting). As Professor Ranney has written: 

"[Elach party has sought winning coalitions by attempting accom- 
modations among competing interests it hopes will appeal to more con- 
tributors and voters than will the rival accommodations offered by the 
opposition party. This strategy, it is conceded, has resulted in vague*, 
ambiguous, and overlapping party programs and in elections that offer the 
voters choices between personalities and, at most, general programmatic 
tendencies, certainly not unequivocal choices between sharply different, 
programs. But this ... is not a vice but a virtue, for it has enabled 
Americans through all but one era of their history to manage their dif- 
ferences with relatively little violence and to preserve the world's oldest 
constitutional democratic regime/' A. Ranney, Curing the Mischiefs of 
Faction 201 (1975), 

5 See Comment, The Constitutionality of Non-Member Voting in Politi- 
cal Party Primary Elections, 14 Willamette L, J. 259, 290 (1078) ("Inde- 
pendents and members of other parties who seek to participate in a party 
primary will do so precisely because they identify with the community 
of interest, if indeed one exists* Their very motive for participating in 
the primary would be to associate with a party presenting 'candidates and 
issues more responsive to their immediate concerns' ")> quoting Rosario v. 
Rockefeller, 410 II. S. 752, 769 (1973) (Powsix, J,, dissenting). 



DEMOCRATIC PARTY OF U. S. v. WISCONSIN 133 

107 POWELL, J., dissenting 

By attracting participation by relatively independent-minded 
voters, the Wisconsin plan arguably may enlarge the support 
for a party at the general election. 

It is significant that the Democratic Party of Wisconsin, 
which represents those citizens of Wisconsin willing to take 
part publicly in Party affairs, is here defending the state law. 
Moreover, the National Party's apparent concern that the 
outcome of the Wisconsin Presidential primary will be skewed 
cannot be taken seriously when one considers the alterna- 
tive delegate-selection methods that are acceptable to the 
Party under its rules. Delegates pledged to various candi- 
dates may be selected by a caucus procedure involving a small 
minority of Party members, as long as all participants in the 
process are publicly affiliated. While such a process would 
eliminate "crossovers," it would be at least as likely as an 
open primary to reflect inaccurately the views of a State's 
Democrats. In addition, the National Party apparently is 
quite willing to accept public affiliation immediately before 
primary voting, which some States permit. 7 As Party affilia- 
tion becomes this easy for a voter to change in order to par- 
ticipate in a particular primary election, the difference be- 
tween open and closed primaries loses its practical significance. 8 



G The unrepresentative nature of the delegate selections produced by 
caucuses is suggested by differences between the results of caucuses and 
nonbinding primaries held in the same State. See n. 11, infra. 

7 E. g., Tenn. Code Ann. 2-7-115 (b) (2) (1979). See Developments 
in the Law, supra n. 4, at 1164, 

8 As one scholar has stated : 

"The distinctions between open and closed primaries are easy to exag- 
gerate. Too sample a distinction ignores the range of nuances and varieties 
within the closed primary states, which after all do account for 82 percent 
of the states. Take the case of Illinois. Voters do not register as mem- 
bers of a party; at the polling place they simply state their party prefer- 
ence and are given the ballot of that party, no questions asked. Because 
Illinois voters must disclose a party preference before entering the voting 
booth, their primary is generally considered 'closed/ One would be hard 
put, however, to argue that it is in operation much different from an open 



134 OCTOBER TERM, 1980 

POWELL, J., dissenting 450 U S. 

In sum, I would hold that the National Party has failed to 
make a sufficient showing of a burden on its associational 
rights. 9 

B 

The Court does not dispute that the State serves important 
interests by its open primary plan. Instead the Court argues 
that these interests are Irrelevant because they do not sup- 
port a requirement that the outcome of the primary be bind- 
ing on delegates chosen for the convention. This argument, 
however, is premised on the unstated assumption that a non- 
binding primary would be an adequate mechanism for pursu- 
ing the state interests involved. This assumption is unsup- 
portable because the very purpose of a Presidential primary, 
as enunciated as early as 1903 when Wisconsin passed its first 
primary law, was to give control over the nomination process 
to individual voters. 10 Wisconsin cannot do this, and still 
pursue the interests underlying an open primary, without 
making the open primary binding. 11 

primary." F. Sorauf, Party Politics in America 206 (4th ed. 1980) (here- 
inafter Sorauf). 

9 Of course, the National Party could decide that it no longer wishes to 
be a relatively nonideological party, but it has not done so Such a change 
might call into question the institutionalized status achieved by the two 
major parties in state and federal law. It cannot be denied that these 
parties play a central role in the electoral process in this country, to a 
degree that has led this Court on occasion to impose constitutional limita- 
tions on party activities. See Smith v Atlwright, 321 U. S. 649 (1944) ; 
Terry v, Adams, 345 U. S. 461 (1953) Arguably, the special status of 
the major parties is an additional factor favoring state regulation of the 
electoral process even in the face of a claim by such a party that this 
regulation has interfered with its First Amendment rights. 

10 See, e. g., Sorauf 204 ("it was an article of faith among [the Pro- 
gressives] that to cure the ills of democracy one needed only to prescribe 
larger doses of democracy"). 

11 Any argument that a nonbinding primary would be sufficient to allow 
individual voters a voice in the nomination process is belied by the fact 
that such a primary often will be ignored in later, nonprimary delegate- 
selection processes. In 1980, for example, Vermont's nonbinding open pri- 



DEMOCRATIC PARTY OF U. S. v. WISCONSIN 135 

107 POWELL, J, dissenting 

If one turns to the interests asserted, it becomes clear that 
they are substantial. As explained by the Wisconsin Supreme 
Court : 

"The state's interest in maintaining a primary and in 
not restricting voting in the presidential preference pri- 
mary to those who publicly declare and record their party 
preference is to preserve the overall integrity of the elec- 
toral process by encouraging increased voter participa- 
tion in the political process and providing secrecy of the 
ballot, thereby ensuring that the primary itself and the 
political party's participation in the primary are con- 
ducted in a fair and orderly manner. 

"In guaranteeing a private primary ballot, the open 
primary serves the state interest of encouraging voters 
to participate in selecting the candidates of their party 
which, in turn, fosters democratic government. His- 
torically the primary was initiated in Wisconsin in an 
effort to enlarge citizen participation in the political 
process and to remove from the political bosses the proc- 
ess of selecting candidates." 93 Wis. 2d, at 512-513, 287 
N. W. 2d, at 536-537 (footnote omitted). 

The State's interest in promoting the freedom of voters to 
affiliate with parties and participate in party primaries has 
been recognized in the decisions of this Court. In several 
cases, we have dealt with challenges to state laws restricting 
voters who wished to change party affiliation in order to par- 
ticipate in a primary. We have recognized that voters have 
a right of free association that can be impaired unconstitu- 
tionally if such state laws become too burdensome. In Rosa- 
rio v. Rockefeller, 410 U. S. 752 (1973), the Court upheld a 

mary produced a lopsided victory, 74.3% to 25.7%, for President Carter 
over Senator Kennedy. 38 Cong. Q. Weekly Rep. 647 (1980). Party 
caucuses then produced a state delegation to the Democratic Convention 
that favored Kennedy over Carter by 7 to 5. Id., at 1472. 



136 OCTOBER TERM, 19SO 

POWELL, J , dissenting 450 U S. 

registration time limit, but emphasized that the law did not 
absolutely prevent any voter from participating in a primary 
and was "tied to a particularized legitimate pxirpose" of pre- 
venting "raiding," 12 id., at 762. In Kuspcr v. Pontikes, 414 
U. S. 51 (1973), we struck down an Illinois law that pre- 
vented voters who had participated in one party's primary 
from switching affiliations to vote in another party's primary 
during the succeeding 23 months. We concluded that such a 
law went too far in interfering with the freedom of the in- 
dividual voter, and could not be justified by the State's inter- 
est in preventing raiding. 

Here, Wisconsin has attempted to ensure that the prospect 
of public party affiliation will not inhibit voters from partici- 
pating in a Democratic primary. Under the cases just dis- 
cussed, the National Party's rule requiring public affiliation 
for primary voters is not itself an unconstitutional interfer- 
ence with voters' freedom of association. Nader v. Schaffcr, 
417 F. Supp. 837 (Conn.) (three-judge court), summarily 
aff'd, 429 U. S. 989 (1976). But these cases do support the 
State's interest in promoting free voter participation by al- 
lowing private party affiliation. The State of Wisconsin has 
determined that some voters are deterred from participation 
by a public affiliation requirement, 13 and the validity of that 
concern is not something that we should second-guess. 11 



12 "Raiding" refers to primary voting by members of another party who 
are seeking to encourage their opponents to select a less desirable* or strong 
candidate. It does not appear to be a problem in Wisconsin. See 93 Wis. 
2d, at 506, 287 N. W. 2d, at 533 ("The petitioner and respondents agree 
that raiding is not a significant problem and that neither tho Wisconsin 
open primary nor the declaration required by Rule 2A prevents 
'raiding' ") 

13 A related concern is the prevention of undue influence by a particular 
political organization or "machine/' The Progressives who promoted the 
idea of a primary election perceived a need to combat political profes- 
sionals who controlled access to governmental power. See A. Lovejoy, 

[Footnote 14 is on p. 1371 



DEMOCRATIC PARTY OF TL 8. v. WISCONSIN 137 

107 POWELL, J., dissenting 

III 

The history of state regulation of the major political parties 
suggests a continuing accommodation of the interests of the 
parties with those of the States and their citizens. In the 
process, "the States have evolved comprehensive, and in 
many respects complex, election codes regulating in most 
substantial ways, with respect to both federal and state elec- 
tions, the time, place, and manner of holding primary and 
general elections, the registration and qualifications of voters, 
and the selection and qualification of candidates." Storer v. 



La Follette and the Establishment of the Direct Primary in Wisconsin 
7-8 (1941) ("avowed purpose" was "the elimination of the boss from the 
American political scene") ; id., at 97 ("Because of their faith in the 
American people, the Progressives sought to cure the ills of democracy 
with more democracy. . . . For the first time the middleman was elimi- 
nated between the people and their representatives") ; Sorauf 203-204. 
The open primary carries this process one step further by eliminating 
some potential pressures from political organizations on voters to affiliate 
with a particular party. Although one well may question the wisdom of 
a state law that undermines the influence of party professionals and may 
tend to weaken parties themselves, the state interests involved are neither 
illegitimate nor insubstantial. As noted supra, at 133, the Democratic 
Party of Wisconsin has filed a brief in support of the validity of the 
Wisconsin plan 

14 A more difficult question in this case is whether Wisconsin can satisfy 
the second component of the "compelling interest test" whether it can 
show that it has no "less drastic way of satisfying its legitimate interests/' 
Kusper v. Pontikes, 414 U. S. 51, 59 (1973). The answer to this question 
depends in many cases on how the state interest is conceived. Here, a 
state interest in protecting voters from the possible coercive effects of 
public party affiliation cannot be satisfied by any law except one that 
allows private party affiliation. On the other hand, if the state interest is 
described more generally, in terms of increasing voter freedom or participa- 
tion, there may well be less "drastic" alternatives available to Wisconsin. 
Because of my conclusion that there is no significant burden on the asso- 
ciational freedoms of appellant National Party in this case, and because 
the Court's analysis does not reach this question, I express no view on 
whether the State has shown a sufficient interest in this particular method 
of regulating the electoral process to satisfy a less-drastic-means inquiry. 



138 OCTOBER TERM, 1980 

POWELL, J., dissenting 450 U S. 

Brown, 415 U. S. 724, 730 (1974). 15 Today, the Court de- 
parts from this process of accommodation. It does so, it 
seems to me, by upholding a First Amendment claim by one 
of the two major parties without any serious inquiry into the 
extent of the burden on associational freedoms and without 
due consideration of the countervailing state interests. 



15 The Court concedes that the States have a substantial interest in 
regulating primary elections. Ante, at 124, n. 28, 126. The power of the 
States in this area derives from the specific constitutional grant of author- 
ity to the States to "appoint, in such Manner as the Legislature thereof 
may direct" Presidential electors, U. S. Const., Art. II, 1, cl. 2, as well as 
from the more general regulatory powers of the States. See Cousins v. 
Wigoda, 419 U. S. 477, 495-496 (1975) (REHNQUIST, J., concurring in 
result). 



INS v. JONG HA WANG 139 

Per Cunam 

IMMIGRATION AND NATURALIZATION SERVICE v. 
JONG HA WANG ET ux. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE NINTH CIRCUIT 

No. 80-485. Decided March 2, 1981 

Respondents, husband and wife who are citizens of Korea and who had 
been ordered to be deported after an administrative hearing, sub- 
sequently moved to reopen the deportation proceedings, seeking a sus- 
pension of deportation for "extreme hardship" under 244 of the 
Immigration and Nationality Act and applicable regulations. They 
alleged that deportation would result in extreme hardship to their two 
American-born children through loss of "educational opportunities/' 
and to themselves and their children from the forced liquidation, at a 
possible loss, of their assets, which included a home and a dry cleaning 
business The Board of Immigration Appeals denied the motion with- 
out a hearing, concluding that respondents had failed to establish a 
prima facie case of extreme hardship. The Court of Appeals reversed, 
directing that a hearing be held and holding that the extreme hardship 
requirement of 244 is satisfied if an alien produces sufficient evidence 
to suggest that the hardship from deportation would be different and 
more severe than that suffered by the ordinary alien who is deported. 

Held: The Board did not exceed its authority and the Court of Appeals 
erred in ordering that the case be reopened. Respondents' allegations 
of hardship were in the main conclusory and unsupported by affidavit, 
as required by the applicable regulations. Moreover, the Court of 
Appeals improvidently encroached on the authority which the Act con- 
fers on the Attorney General and his delegates to define "extreme hard- 
ship" in the first instance. They may construe the term narrowly 
should they deem it wise to do so, and their construction and application 
of the standard should not be overturned simply because the reviewing 
court may prefer another interpretation of the statute. 

Certiorari granted; 622 F. 2d 1341, reversed. 

PER CURIAM. 

Section 244 of the Immigration and Nationality Act (Act) , 
66 Stat. 214, as amended, 8 U. S. C. 1264(a)(l), pro- 
vides that the Attorney General in his discretion may suspend 



140 OCTOBER TERM, 1980 

Per Curiam 450 U.S. 

deportation and adjust the status of an otherwise deportable 
alien who (1) has been physically present in the United 
States for not less than seven years; (2) is a person of good 
moral character; and (3) is "a person whose deportation 
would, in the opinion of the Attorney General, result in ex- 
treme hardship to the alien or to his spouse, parent, or child, 
who is a citizen of the United States or an alien lawfully ad- 
mitted for permanent residence.' 1 1 The Attorney General is 
authorized to delegate his powers under the Act, 8 U. S. C. 
1103, and his authority under 244 has been delegated by 
regulation to specified authorities in the Immigration and 
Naturalization Service. 8 CFR 2.1 (1979). 2 

The 244 issue usually arises in an alien's deportation 
hearing. It can arise, however, as it did in this case, on a 
motion to reopen after deportation has been duly ordered. 
The Act itself does not expressly provide for a motion to re- 
open, but regulations promulgated under the Act allow such 



1 Initially, the Attorney General had no discretion in ordering deporta- 
tion, and an alien's sole remedy was to obtain a private bill from Congress, 
See Foti v INS, 375 U. S. 217, 222 (1963). The first measure of statutory 
relief was included in the Alien Registration Act of 1940, 54 Rtat. 670. 
Under the statutory predecessor of 244, suspension of a deportation 
order could be granted only if the alien demonstrated "exceptional and 
extremely unusual hardship/' Immigration and Nationality Act of 1952, 
244 (a)(l), Pub. L. 414, 66 Stat. 214. This provision was amended to 
require that the alien show that deportation would result in "extreme 
hardship/' Act of Oct. 24, 1962, Pub. L. 87-885, 4, 76 Stat. 1248. 

2 Section 2.1 of the regulations delegates the Attorney General's power 
to the Commissioner of Immigration and Naturalization, and permits 
the Commissioner to redelegate the authority through appropriate regula- 
tions. The power to consider 244 applications in deportation hearings is 
delegated to special inquiry officers, whose decisions are subject to review 
by the Board of Immigration Appeals, 8 CFR 242.8, 242.21 (1979). 
See Bastidas v. INS, 609 F. 2d 101, 103, n. 1 (CA3 1979). The Board of 
Immigration Appeals has the power to consider the question if it is raised 
on a motion to reopen where the Board has already made a decision in the 
ease. 8 CFR 3.2 (1979). 



INS v. JONG HA WANG 141 

139 Per Curiam 

a procedure. 3 The regulations also provide that the motion 
to reopen shall "state the new fact to be proved at the re- 
opened hearing and shall be supported by affidavits or other 
evidentiary material." 8 CFR 3.8 (a) (1979). Motions to 
reopen are thus permitted in those cases in which the events 
or circumstances occurring after the order of deportation 
would satisfy the extreme-hardship standard of 244. Such 
motions will not be granted "when a prima fade case of eligi- 
bility for the relief sought has not been established." Matter 
of Lam, 14 I. & N. Dec. 98 (BIA 1972). See Matter of Sipus, 
14 I. & N. Dec. 229 (BIA 1972). 

Respondents, husband and wife, are natives and citizens of 
Korea who first entered the United States in January 1970 
as nonimmigrant treaty traders. They were authorized to 
remain until January 10, 1972, but they remained beyond 
that date without permission and were found deportable after 
a hearing in November 1974. They were granted the privi- 
lege of voluntarily departing by February 1, 1975. They did 
not do so. Instead, they applied for adjustment of status 
under 245 of the Act, 8 TJ. S. C. 1255, but were found 
ineligible for this relief after a hearing on July 15, 1975. 4 
Their appeal from this ruling was dismissed by the Board of 

3 Title 8 CFR 3.2 (1979) provides in pertinent part: 

"Motions to reopen in deportation proceedings shall not be granted unless 
it appears to the Board that evidence sought to be offered is material and 
was not available and could not have been discovered or presented at the 
former hearing; nor shall any motion to reopen for the purpose of afford- 
ing the alien an opportunity to apply for any form of discretionary relief 
be granted . . . unless the relief is sought on the basis of circumstances 
which have arisen subsequent to the hearing." 

4 Relief was denied because the immigration judge determined that visa 
numbers for nonpreference Korean immigrants were not available, thus 
rendering respondents ineligible for the requested relief. The immigration 
judge also stated that he would have denied the application given respond- 
ents' failure to move to Salt Lake City where Mr. Wang's sponsoring em- 
ployer was located, thus causing doubt whether his services were in fact 
needed. 



142 OCTOBER TERM, 1980 

Per Curiam 450 U S. 

Immigration Appeals in October 1977. Respondents then 
filed a second motion to reopen their deportation proceedings 
in December 1977, this time claiming suspension under 244 
of the Act. Respondents by then had satisfied the 7-year- 
continuous-physical-presence requirement of that section. 
The motion alleged that deportation would result in extreme 
hardship to respondents 7 two American-born children be- 
cause neither child spoke Korean and would thus lose "edu- 
cational opportunities" if forced to leave this country. Re- 
spondents also claimed economic hardship to themselves and 
their children resulting from the forced liquidation of their 
assets at a possible loss. None of the allegations was sworn 
or otherwise supported by evidentiary materials, but it ap- 
peared that all of respondents' close relatives, aside from 
their children, resided in Korea and that respondents had 
purchased a dry-cleaning business in August 1977, some three 
years after they had been found deportable. The business 
was valued at $75,000 and provided an income of $650 per 
week. Respondents also owned a home purchased in 1974 
and valued at $60,000. They had $24,000 in a savings ac- 
count and some $20,000 in miscellaneous assets. Liabilities 
were approximately $81,000. 

The Board of Immigration Appeals denied respondents' 
motion to reopen without a hearing, concluding that they 
had failed to demonstrate a prima facie case that deportation 
would result in extreme hardship to either themselves or their 
children so as to entitle them to discretionary relief under the 
Act. The Board noted that a mere showing of economic det- 
riment is not sufficient to establish extreme hardship under 
the Act. See Pelaez v. INS, 513 F. 2d 303 (CAS), cert, 
denied, 423 U. S. 892 (1975). This was particularly true 
since respondents had "significant financial resources and 
there [was] nothing to suggest that the college-educated male 
respondent could not find suitable employment in Korea." 
With respect to the claims involving the children, the Board 
ruled that the alleged loss of educational opportunities to the 



INS v. JONG HA WANG 143 

139 Per Curiam 

young children of relatively affluent, educated Korean par- 
ents did not constitute extreme" hardship within the meaning 
of 244. 

The Court of Appeals for the Ninth Circuit, sitting en bane, 
reversed. 622 F. 2d 1341 (1980). Contrary to the Board's 
holding, the Court of Appeals found that respondents had 
alleged a sufficient prima facie case of extreme hardship to 
entitle them to a hearing. The court reasoned that the stat- 
ute should be liberally construed to effectuate its ameliorative 
purpose. The combined effect of the allegation of harm to 
the minor children, which the court thought was hard to dis- 
cern without a hearing, and the impact on respondents' eco- 
nomic interests was sufficient to constitute a prima facie case 
requiring a hearing where the Board would "consider the 
total potential effect of deportation on the alien and his 
family/' Id., at 1349. 

The Court of Appeals erred in two respects. First, the 
court ignored the regulation which requires the alien seeking 
suspension to allege and support by affidavit or other eviden- 
tiary material the particular facts claimed to constitute ex- 
treme hardship. Here, the allegations of hardship were in 
the main conclusory and unsupported by affidavit. By re- 
quiring a hearing on such a motion, the Court of Appeals 
circumvented this aspect of the regulation, which was ob- 
viously designed to permit the Board to select for hearing 
only those motions reliably indicating the specific recent 
events that would render deportation a matter of extreme 
hardship for the alien or his children. 5 



c Other Courts of Appeals have enforced the evidentiary requirement 
stated in 8 CFR 3.8 (1979). See, e. g :f Oum v. INS, 613 F. 2d 51, 54 
(CA4 1980); Acevedo v. INS f 538 F. 2d 918, 920 (CA2 1976). See also 
Tupacyupanqui-Marin v. INS, 447 F. 2d 603, 607 (CA7 1971); Luna- 
Benalcazar v. INS, 414 F. 2d 254, 256 (CA6 1969). 

Prior to the present procedures, the grant or denial of a motion to 
reopen was solely within the discretion of the Board. See Arakas v. Zim- 
merman, 200 F. 2d 322, 323-324, and n. 2 (CAS 1952). The present regu- 



144 OCTOBER TERM, 1980 

Per Cnnnm 450 U S. 

Secondly, and more fundamentally, the Court of Appeals 
improvidently encroached on the authority which the Act 
confers on the Attorney General and his delegates. The 
crucial question in this case is what constitutes "extreme 
hardship. " These words are not self-explanatory, and rea- 
sonable men could easily differ as to their construction. But 
the Act commits their definition in the first instance to the 
Attorney General and his delegates, and their construction 
and application of this standard should not be overturned by 
a reviewing court simply because it may prefer another inter- 
pretation of the statute. Here, the Board considered the 
facts alleged and found that neither respondents nor their 
children would suffer extreme hardship. The Board consid- 
ered it well settled that a mere showing of economic detri- 
ment was insufficient to satisfy the requirements of 244 and 
in any event noted that respondents had significant financial 
resources while finding nothing to suggest that Mr. Wang 
could not find suitable employment in Korea. It also fol- 
lowed that respondents' two children would not suffer serious 
economic deprivation if they returned to Korea. Finally, the 
Board could not believe that the two "young children of 



lation is framed negatively; it directs the Board not to reopen unless 
certain showings are made, Tt does not affirmatively require the Board 
to reopen the proceedings under any particular condition. Thus, the 
regulations may be construed to provide the Board with discretion in 
determining under what circumstances proceedings should he reopened. 
See Villena v. INS, 622 F. 2d 1352 (CA9 1980) (en bane) (Wallace, J., dis- 
senting). In his dissent, Judge Wallace stated that INS had discretion 
beyond requiring proof of a prima facie case; 

"If INS discretion is to mean anything, it must be that tho INS has 
some latitude in deciding when to reopen a case. The INS should have 
the right to be restrictive. Granting such motions too freely will permit 
endless delay of deportation by aliens creative and fertile enough to con- 
tinuously produce new and material facts sufficient to establish a prima 
facie case. It will also waste the time and efforts of immigration judges 
called upon to preside at hearings automatically required by the prima 
facie allegations/' Id,, at 1362. 



INS v. JONG HA WANG 146 

139 Per Curiam 

affluent, educated parents" would be subject to such educa- 
tional deprivations in Korea as to amount to extreme hard- 
ship. In making these determinations, the Board was acting 
within its authority. As we see it, nothing in the allegations 
indicated that this is a particularly unusual case requiring 
the Board to reopen the deportation proceedings. 

The Court of Appeals nevertheless ruled that the hardship 
requirement of 244 is satisfied if an alien produces sufficient 
evidence to suggest that the "hardship from deportation 
would be different and more severe than that suffered by the 
ordinary alien who is deported." 622 F. 2d, at 1346. Also, 
as Judge Goodwin observed in dissent, the majority of the 
Court of Appeals also strongly indicated that respondents 
should prevail under such an understanding of the statute. 
Id., at 1352. In taking this course, the Court of Appeals 
extended its "writ beyond its proper scope and deprived 
the Attorney General of a substantial portion of the discre- 
tion which 244 (a) vests in him." Id., at 1351 (Sneed, J., 
dissenting). 

The Attorney General and his delegates have the authority 
to construe "extreme hardship" narrowly should they deem 
it wise to do so. Such a narrow interpretation is consistent 
with the "extreme hardship" language, which itself indicates 
the exceptional nature of the suspension remedy. Moreover, 
the Government has a legitimate interest in creating official 
procedures for handling motions to reopen deportation pro- 
ceedings so as readily to identify those cases raising new and 
meritorious considerations. Under the standard applied by 
the court below, many aliens could obtain a hearing based 
upon quite minimal showings. As stated in dissent below, 
"by using the majority opinion as a blueprint, any foreign 
visitor who has fertility, money, and the ability to stay out 
of trouble with the police for seven years can change his 
status from that of tourist or student to that of permanent 
resident without the inconvenience of immigration quotas. 
This strategy is not fair to those waiting for a quota." Id., 



146 OCTOBER TERM, 1980 

Per Curiam 460 U.S. 

at 1352 (Goodwin, J., dissenting). Judge Goodwin further 
observed that the relaxed standard of the majority opinion 
"is likely to shift the administration of hardship deportation 
cases from the Immigration and Naturalization Service to 
this court." Id., at 1351. 

We are convinced that the Board did not exceed its au- 
thority and that the Court of Appeals erred in ordering that 
the case be reopened. Accordingly, the petition for certio- 
rari is granted, and the judgment of the Court of Appeals is 
reversed. 

So ordered. 

JUSTICES BRENNAN, MARSHALL, and BLACKMUN would 
grant the petition for certiorari and give the case plenary 
consideration. 



FLORIDA DEPT. OF HEALTH v. FLA. NURSING HOME ASSN. 147 

Per Curiam 



FLORIDA DEPARTMENT OF HEALTH AND REHA- 
BILITATIVE SERVICES ET AL. v. FLORIDA 
NURSING HOME ASSOCIATION ET AK 

ON PETITION" FOR WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE FIFTH CIRCUIT 

No. 80-532. Decided March 2, 1981 

Held: In proceedings by respondent nursing homes and nursing home 
association wherein regulations relating to Medicaid reimbursements to 
be paid by participating States to nursing homes were held invalid, the 
Court of Appeals erred in holding that the State of Florida had waived 
its Eleventh Amendment immunity from liability in federal court for 
retroactive monetary relief to respondents. The State's general waiver 
of sovereign immunity for petitioner Department of Health and Re- 
habilitative Services, under a statute providing that the Department is 
a body corporate with the capacity to sue and be sued, does not con- 
stitute a waiver by the State of its Eleventh Amendment immunity from 
suit in federal court. Nor is the Department's agreement, upon par- 
ticipating in the Medicaid program, to obey federal law in administering 
the program sufficient to waive the protection of the Eleventh Amend- 
ment. Edelman v. Jordan, 415 U. S. 651. 

Certiorari granted; 616 F. 2d 1355, reversed. 

PER CTJRIAM. 

Petitioners, the Florida Department of Health and Re- 
habilitative Services and its Secretary, seek review of a deci- 
sion of the United States Court of Appeals for the Fifth 
Circuit ordering them to make payments to various nursing 
homes. These payments represent the amount that Florida 
was found to have underpaid these nursing homes in the 
course of its Medicaid reimbursements from July 1, 1976, to 
October IS, 1977. Because we conclude that the court below 
misapplied the prevailing standard for finding a waiver of the 
State's immunity under the Eleventh Amendment, we grant 
a writ of certiorari and reverse. 



148 OCTOBER TERM, 1980 

Per Curiain 450 U.S. 



In 1972, Congress amended the Medicaid Program to pro- 
vide that every "skilled nursing facility and intermediate care 
facility" must be reimbursed by participating States on a 
"cost related basis." 86 Stat. 1426, 42 U. S. C. 1396a (a) 
(13)(E). This amendment was to take effect on July 1, 
1976, ibid., and had the effect of altering some reimbursement 
arrangements based on "flat rates" established by the States. 
Regulations implementing this change were not promulgated 
by the Department of Health, Education, and Welfare 
(HEW) until 1976. As a result, the regulations provided 
that HEW would not enforce the new "cost related" reim- 
bursement requirement until January 1, 1978. 45 CPR 
250.30 (a) (3) (iv) (1976). 1 

In March 1977, respondents, an association of Florida 
nursing homes and various individual nursing homes in 
southern Florida, brought suit in federal court against the 
Secretary of HEW and petitioners. They argued that the 
delay in enforcement created by the implementing regula- 
tions was inconsistent with the statutory directive that cost- 
related reimbursements begin on July 1, 1976. In addition 
to prospective relief, they sought retroactive relief in the 
form of payments by the State of the difference between the 
reimbursement they had received since July 1, 1976, and the 
amounts they would have received under a cost-related sys- 
tem. The United States District Court for the Southern Dis- 
trict of Florida held the regulations invalid, relying on its 
previous decision in Golden Isles Convalescent Center, Inc. 
v. Calif ana, 442 F. Supp. 201 (1977), aff'd, 616 F* 2d 1855 
(CAS), cert, denied sub nom. Taylor v. Golden Isles Con- 



*!& a commentary accompanying the new regulations, the Secretary 
noted that no States would be able to accumulate needed data in time to 
meet the statutory deadline of July 1, 1976, For this reason, cost-related 
reimbursement was not required under the regulations until January 1, 
1978, but the States were "encouraged to meet each requirement of the 
regulations as soon as possible." 41 Fed. Reg. 27305 (1976) . 



FLORIDA DEPT. OF HEALTH v. FLA. NURSING HOME ASSN. 149 
147 Per Curiam 

valescent Center, Inc., 449 U. S. 872 (1980). These two 
cases were consolidated for consideration of the availability 
of retroactive relief, and the District Court held that such re- 
lief was barred by the Eleventh Amendment. 

On appeal, the United States Court of Appeals for the 
Fifth Circuit affirmed the ruling that the regulations were 
invalid, but reversed the District Court's determination that 
retroactive relief was barred by the Eleventh Amendment. 
616 F. 2d 1355 (1980). 2 The court acknowledged that ret- 
roactive monetary relief against a State in federal court is 
forbidden by the Eleventh Amendment "if not consented to 
by the state." Id., at 1362. It found the requisite consent, 
however, based on two acts of the State. First, Florida law 
provides that the Department of Health and Rehabilitative 
Services is a "body corporate" with the capacity to "sue and 
be sued," Fla. Stat. 402.34 (1979). 616 F. 2d, at 1363. In 
addition to this general waiver of sovereign immunity, the 
court found a specific waiver of the Eleventh Amendment's 
immunity from suit in federal court in an agreement under 
the Medicaid Program in which the Department agreed to 
"recognize and abide by all State and Federal Laws, Regula- 
tions, and Guidelines applicable to participation in and ad- 
ministration of, the Title XIX Medicaid Program." Ibid. 
"By contracting with appellants to be bound by all federal 
laws applicable to the Medicaid program, the state has ex- 
pressly waived its Eleventh Amendment immunity and con- 
sented to suit in federal court regarding any action by pro- 
viders alleging a breach of these laws." Ibid. 

II 

The analysis in this case is controlled by our decision in 
Edelman v. Jordan, 415 U. S. 651 (1974). There we applied 

2 The Golden Isles case and this case remained consolidated on appeal. 
The decision below, however, produced two separate petitions for cer- 
tiorari The first, Taylor v. Golden Isles Convalescent Center, Inc., cert, 
denied, 449 U. S. 872 (1980), involved jurisdictional and venue issues. 
The present petition relates only to the availability of retroactive relief. 



150 OCTOBER TERM, 1980 

Per Curiain 460 U.S. 

the Eleventh Amendment to retroactive grants of welfare 
benefits and discussed the proper standard for a waiver of 
this immunity by a State. On the latter issue we stated 
that "we will find waiver only where stated 'by the most 
express language or by such overwhelming implications from 
the text as [will] leave no room for any other reasonable 
construction.' " Id., at 673, quoting Murray v. Wilson Dis- 
tilling Co., 213 IT. S. 151, 171 (1909). We added that the 
"mere fact that a State participates in a program through 
which the Federal Government provides assistance for the 
operation by the State of a system of public aid is not suffi- 
cient to establish consent on the part of the State to be sued 
in the federal courts." 415 U. S., at 673. 

The holding below, finding a waiver in this case, cannot be 
reconciled with the principles set out in Edelman. As the 
Court of Appeals recognized, the State's general waiver of 
sovereign immunity for the Department of Health and Re- 
habilitative Services "does not constitute a waiver by the 
state of its constitutional immunity under the Eleventh 
Amendment from suit in federal court." 616 F. 2d, at 1363, 
See Smith v. Reeves, 178 U. S. 436, 441 (1900), And the 
fact that the Department agreed explicitly to obey federal 
law in administering the program can hardly be deemed an 
express waiver of Eleventh Amendment immunity. This 
agreement merely stated a customary condition for any par- 
ticipation in a federal program by the State, and Edelman 
already established that neither such participation in itself, 
nor a concomitant agreement to obey federal law, is sufficient 
to waive the protection of the Eleventh Amendment.* 415 
U. S., at 673-674. 

We therefore reverse the decision below* 

It is so ordered. 

* Petitioners argue that under Florida law a waiver of immunity can 
only be accomplished by a state statute. See Pla. Const., Art. 10, 13. 
No such waiver is present here. 

In addition, it is worth noting that in October 1976 Congress repealed 



FLORIDA DEPT. OF HEALTH v. FLA. NURSING HOME ASSN. 151 
147 STEVENS, J., concurring 

JUSTICE MARSHALL dissents and would affirm the judgment 
of the Court of Appeals, substantially for the reasons stated 
in his dissent in Edelman v. Jordan, 415 U. S. 651, 688 (1974). 

JUSTICE BLACKMUN also dissents and would affirm the 
judgment of the Court of Appeals substantially for the rea- 
sons stated in JUSTICE MARSHALL'S dissent in Edelman v. 
Jordan, 415 U. S. 651, 688 (1974). 

JUSTICE STEVENS, concurring. 

The decision of the Court of Appeals is in square conflict 
with this Court's holding in Edelman v. Jordan, 415 U. S. 
651. Apparently recognizing this fact, respondents urge the 
Court to grant certiorari and hear argument on the question 
whether Edelman should be overruled. 1 I find this question 
less easily answered than do my Brothers, all of whom were 
Members of the Court when Edelman was decided. Each 
has voted today consistently with his vote in Edelman itself. 

The arguments in favor of overruling Edelman are appeal- 
ing, particularly because I share the opinion of JUSTICE 
BRENNAN, JUSTICE MARSHALL, and JUSTICE BLACKMUN that 
Edelman was incorrectly decided. 2 I have previously relied 



a provision requiring States participating in Medicaid to waive their 
Eleventh Amendment immunity. Pub. L. 94-552, 90 Stat. 2540. This 
repeal was made retroactive to January 1, 1976. 

1 Respondents initially argued that the Court of Appeals' decision was 
distinguishable from Edelman and that certiorari therefore should be 
denied. However, after the Solicitor General, on behalf of the Secretary 
of Health and Human Services, recommended that the Court grant cer- 
tiorari and summarily reverse the lower court's decision, respondents re- 
quested that the Court instead grant certiorari and consider overruling 
Edelman. See Supplemental Brief for Respondent Nursing Homes 4-13. 

2 In 1972, 1 sat as a member of a three-judge District Court that rejected 
essentially the same Eleventh Amendment argument that the Court ac- 
cepted in Edelman. See Mothers and Childrens Rights Organization v. 
Sterrett, No. 70 F. 138 (ND Ind., Apr. 14, 1972), summarily aff'd, 409 



152 OCTOBER TERM, 1980 

STEVENS, J. ; concurring 450 U.S. 

on rather slender grounds for distinguishing Edelman,* when 
wiser judges might have forthrightly urged rejection of the 
precedent* And I joined the Court's decision to overrule 
Monroe v. Pape, 365 U. S. 167, insofar as it concerned the fi- 
nancial responsibility of municipal corporations. See Monell 
v. New York City Dept. of Social Services, 436 U. S. 658, 714 
(STEVENS, J., concurring in part). Moreover, the reflections 
of some former Members of the Court on the doctrine of 
stare detisis suggest that they would not have hesitated to 
overrule a decision that stands as an impediment to provid- 
ing an adequate remedy for citizens injured by their govern- 
ment. 5 Nevertheless, I find greater force in the countervail- 
ing arguments. 

First, I would note that Edelman did not announce a rule 
of law fundamentally at odds with our current understand- 
ing of the scope of constitutionally protected civil rights, 6 

U. S. 809; cited in Edelman, 415 U. S., at 670, n. 13, I am therefore 
quite certain that I would have joined JUSTICE MARSHALL'S dissent if I 
had been a Member of the Court when Edelman was decided. 

8 See Fitzpatrick v. Bitzer, 427 U. S. 445, 458-460 (&TBVBNS, J., 
concurring) . 

4 In his 1949 Cardozo lecture, Justice Douglas stated: 

"The idea that any body of law, particularly public law, should appear 
to stay put and not be in flux is an interesting phenomenon that Frank 
has explored in Law and the Modern Mind. He points out how it is in 
law and in other fields too that men continue to chant of the immutabil- 
ity of a rule in order to 'cover up the transformation, to deny the reality 
of change, to conceal the truth of adaptation behind a verbal disguise of 
fixity and universality/ But the more blunt, open, and direct course is 
truer to democratic traditions. It reflects the candor of Cardozo. The 
principle of full disclosure has as much place in government as it does in 
the market place. A judiciary that discloses what it is doing and why it 
does it will breed understanding. And confidence based on understanding 
is more enduring than confidence based on awe," W. Douglas, Stare 
Decisis 3O-31 (1949) (footnote omitted). 

6 See W. Douglas, supra; A. Goldberg, Equal Justice: The Warren Era 
of the Supreme Court 67-97 (1971), 

6 Cf . Brown v. Board of Education, 347 U. S. 483, 489-495, overruling 
Plessy v. Ferguson, 163 U. S. 537. 



FLORIDA DEPT OF HEALTH v. FLA. NURSING HOME ASSN. 153 
147 STEVENS, J., concurring 

nor did it rest upon a discredited interpretation of the rele- 
vant historical documents. 7 Rather, the rule of the Edel- 
man case is of only limited significance and has been a part 
of our law for only a few years. Its limiting effect on the 
jurisdiction of federal courts is not so restrictive that Con- 
gress may not mitigate its impact by unambiguously condi- 
tioning state participation in federal programs on a waiver 
of the Eleventh Amendment defense. The Edelman rule 
represents an interpretation of the Eleventh Amendment 
that had previously been endorsed by some of our finest Cir- 
cuit Judges; 8 it therefore cannot be characterized as unrea- 
sonable or egregiously incorrect. 9 

Of even greater importance, however, is my concern about 
the potential damage to the legal system that may be caused 
by frequent or sudden reversals of direction that may appear 
to have been occasioned by nothing more significant than a 
change in the identity of this Court's personnel. 10 Granting 
that a zigzag is sometimes the best course, 11 I am firmly 
convinced that we have a profound obligation to give recently 
decided cases the strongest presumption of validity. That 



7 Cf. Erie R. Co. v. Tompkins, 304 TJ. S. 64, 71-73, overruling Swift 
v. Tyson, 16 Pet. 1. 

8 The opinion in Rothstein v. Wyman, 467 F. 2d 226, 228 (CA2 1972), 
which adopted the interpretation of the Eleventh Amendment subsequently 
approved by this Court in Edelman, was written by Judge McGowan (sit- 
ting by designation) and was joined by Chief Judge Friendly and Judge 
Timbers. See 415 U. S., at 664-665, 666, n. 11. 

9 The principal justifications for refusing to apply the doctrine of stare 
decisis in Monell v. New York City Dept. of Social Services, 436 U. S. 658; 
see id., at 695-701, are therefore not available in this case. 

10 Scholars have suggested that the identity of the Court's personnel 
was a factor underlying the decision in National League of Cities v. Usery, 
426 U. S. 833, 853-855, to overrule Maryland v. Wirtz, 392 U. S. 183. 
See, e. g., J. Nowak, J. Young, & R. Rotunda, Constitutional Law 159-163 
(1978). 

11 See, e, g., West Virginia Board of Education v. Barnette, 319 TI. S. 
624, overriding Minersville School District v. Gobitis, 310 U. S. 586. 



154 OCTOBER TERM, 1980 

STEVENS, J., concurring 450 U.S. 

presumption is supported by much more than the desire to 
foster an appearance of certainty and impartiality in the 
administration of justice, or the interest in facilitating the 
labors of judges. 12 The presumption is an essential thread 
in the mantle of protection that the law affords the individ- 
ual. Citizens must have confidence that the rules on which 
they rely in ordering their affairs particularly when they 
are prepared to take issue with those in power in doing so 
are rules of law and not merely the opinions of a small group 
of men who temporarily occupy high office. 13 It is the un- 
popular or beleaguered individual not the man in power 
who has the greatest stake in the integrity of the law. 14 



12 These concerns are not, however, insubstantial: 

"[T]he labor of judges would be increased almost to the breaking point 
if every past decision could be reopened in every case, and one could not 
lay one's own course of bricks on the secure foundation of the courses laid 
by others who had gone before him/* B. Cardozo, The Nature of the 
Judicial Process 149 (1921). 

18 This, of course, is not a novel suggestion. As the first Justice White 
noted in his dissent in Pollock v. Farmers? Loan & Trust Co., 157 U. S. 
429, 652: 

"The fundamental conception of a judicial body is that of one hedged 
about by precedents which are binding on the court without regard to the 
personality of its members. Break down this belief in judicial continuity, 
and let it be felt that on great constitutional questions this court is to 
depart from the settled conclusions of its predecessors, and to determine 
them all according to the mere opinion of those who temporarily fill its 
bench, and our Constitution will, in my judgment, be bereft of value and 
become a most dangerous instrument to the rights and liberties of the 
people." 

** THE CHIEF JUSTICE recently reminded us of this fact by quoting a 
statement ascribed to Sir Thomas More: 

"This country's planted thick with laws from coast to coaat Man's laws, 
not God's and if you cut them down . , . d'you really think you could 
stand upright in the winds that would blow then? . * . Yes, I'd give the 
Devil benefit of law, for my own safety's sake." See TV A v. Hill, 437 
U. S. 153, 195, quoting R. Bolt, A Man for All Seasons, Act I, p. 147 
(Three Plays, Heinemann ed. 1967). 



FLORIDA DEPT. OF HEALTH v. FLA. NURSING HOME ASSN. 155 
147 BRENNAN, J., dissenting 

For me, the adverse consequences of adhering to an argu- 
ably erroneous precedent in this case are far less serious than 
the consequences of further unravelling the doctrine of stare 
decisis. I therefore join the Court's disposition. 

JTTSTICE BRENDAN, dissenting. 

I dissent and would affirm the judgment of the Court of 
Appeals. This suit is brought by Florida citizens against 
Florida officials. In that circumstance I ana of the view, ex- 
pressed in dissent in Edelman v. Jordan, 415 U. S. 651, 687 
(1974), that Florida "may not invoke the Eleventh Aonend- 
ment, since that Amendment bars only federal court suits 
against States by citizens of other States." 



166 OCTOBER TERM, 1980 

Syllabus 450 U. S. 

COMMISSIONER OF INTERNAL REVENUE v. PORT- 
LAND CEMENT COMPANY OF UTAH 

CBRTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE 

TENTH CIRCUIT 

No. 79-1907. Argued January 13, 1981 Decided March 3, 1981 

Respondent mines cement rock and manufactures it into Portland cement. 
Section 611 (a) of the Internal Revenue Code of 1954 allows respond- 
ent, as a miner, to deduct from its taxable income a percentage of its 
gross income from mining as a recoupment of capital investment in the 
depleting mineral. Because respondent, as an integrated miner-manu- 
facturer, has no actual gross income from mining, it must base its 
depletion deduction upon a constructive gross income from mining. 
For each of the tax years at issue in this case, respondent used the 
proportionate profits method prescribed by the Treasury Regulations 
to compute such constructive gross income. This method uses the costs 
of and proceeds from the taxpayer's "first marketable product" to 
derive the constructive gross income. The regulations define "first 
marketable product" as "the product (or group of essentially the same 
products) produced by the taxpayer as a result of the application of 
nonmining processes, in the form or condition in which such product 
or products are first marketed in significant quantities by the taxpayer/ 1 
The regulations provide that bulk and packaged products axe considered 
to be essentially the same product for this purpose. The method re- 
quired respondent to derive the portion of total proceeds that reflects 
the ratio between its mining costs and its total costs. Under the regu- 
lations, respondent must include in the total-costs figure "all the mining 
and nonmining costs paid or incurred to produce, aell, and transport 
the first marketable product/' Respondent took the position that its 
"first marketable product" was cement sold in bulk, rather than all 
cement sold, whether in bulk or in bags. The costs of bags and bag- 
ging- exceeded respondent's bagging premium (the increase in proceeds 
for selling cement in bags). Hence, respondent did not include pro- 
ceeds from the sale of cement in bags in the total-proceeds figure of the 
proportionate profits method. Nor did respondent include in the total- 
costs figure of the method the costs incurred for bags, bagging, storage, 
distribution, and sales. The result was that the proportionate profits 
method yielded a greater constructive grow income from mining, and 
respondent reported a correspondingly greater depletion deduction, than 



COMMISSIONER v. PORTLAND CEMENT CO. OF UTAH 157 
156 Syllabus 

it would have if it had included those proceeds m costs in its computation 
by such method. Petitioner Commissioner of Internal Revenue deter- 
mined that respondent's reported tax liabilities were deficient, taking the 
position that respondent's "first marketable product" is cement, whether 
sold in bulk or in bags, and that respondent should have included pro- 
ceeds from its sale of bagged cement in its calculation by the method, 
and also the costs incurred for bags, bagging, storage, distribution, and 
sales. Respondent then filed suit in the Tax Court for a redetermina- 
tion. That court accepted respondent's position, and the Court of 
Appeals affirmed. 

Held: The Treasury Regulations defining "first marketable product" and 
prescribing the treatment of the costs of bags, bagging, storage, dis- 
tribution, and sales support the Commissioner's position Pp. 165-174. 

(a) This Court customarily defers to Treasury Regulations that "im- 
plement the congressional mandate in some reasonable manner/' 
United States v Correll, 389 U. S. 299, 307. P. 169. 

(b) Respondent's contention that the Commissioner's position will 
yield a distorted constructive gross income from mining if it is applied 
without regard to the particular circumstances in this case, i. e., that 
respondent's bagging costs exceed its bagging premium, misperceives 
both the meaning of "gross income from mining" and the holding in 
United States v. Cannelton Sewer Pipe Co., 364 U. S 76. Under the 
Code and regulations, gross income from mining means income received, 
whether actually or constructively, without regard to value. In 
Cannelton, in interpreting an earlier statutory definition of "mining/ 1 
the Court said that "Congress intended integrated mining-manufacturing 
operations to be treated as if the operator were selling the mineral 
mined to himself for fabrication." Id., at 89. This statement, in the 
context in which it occurs, does not support respondent's contention 
that the method used to determine constructive gross income must take 
into account forces that might cause income to differ from value. Nor 
does the difference between bagging costs and the bagging premium 
warrant a deviation from the regulation's definition of "first marketable 
product." Pp. 170-173. 

(c) The statutory definition of "mining" to include all processes up 
to the introduction of the kiln feed into the Mln, "but not . . . any sub- 
sequent processes," forecloses respondent's further contention that the 
costs it incurred in the storage, distribution, and sales of its first 
marketable product, if they must be included in the proportionate 
profits method, should be treated as indirect costs which benefit the 
entire mining-manufacturing operation, and hence should be allocated 
between mining and manufacturing. The regulations recognizing that 



158 OCTOBER TERM, 1980 

Opinion of the Court 460 U.S. 

storage, distribution, and sales are "subsequent processes" are reason- 
able. Pp. 173-174. 
614 F. 2d 724 reversed. 

POWELL, J., delivered the opinion for a unanimous Court. 

Stuart A. Smith argued the cause for petitioner. With him 
on the briefs were Solicitor General McCree, Acting Assistant 
Attorney General Murray, Jonathan S. Cohen, and David 
English Carmack. 

Dennis P. Bedell argued the cause for respondent. With 
him on the brief were Mark L. Evans, John J. Martin, and 
Glen E. Fuller* 

JUSTICE POWEI^L delivered the opinion of the Court. 

This case concerns the depletion deduction taken under 
611 of the Internal Revenue Code of 1954, 26 U. S. C. 
611, by a company that mines and manufactures Portland 
cement. The question presented is whether the company's 
"first marketable product/' for the purpose of determining 
gross income from mining by the proportionate profits 
method, is cement, whether sold in bulk or in bags, or only 
cement sold in bulk. 

I 

Respondent, Portland Cement Co. of Utah, is an integrated 
miner-manufacturer. It mines argillaceous limestone rock, 
known in the trade as cement rock, and it manufactures the 
rock into Portland cement, 1 As a miner, respondent is al~ 



*Richard A. Frding and David O. Glickman filed a brief for Centex 
Corp. as amicus curiae urging affirmance. 

1 As suggested by the term "integrated miner-manufacturer/' respond- 
ent's operation has two phases: mining and manufacturing* The mining 
phase begins with the blasting of cement rock from the face of respond- 
ent's quarry. After crushing the rock into pieces about <me cubic inch 
in size, respondent transports the rock to its processing plant, which is 
about 12 miles from its quarry in Utah* Heaponde&t then grinds the 



COMMISSIONER v PORTLAND CEMENT CO. OF UTAH 159 
156 Opinion of the Court 

lowed by 611 (a) 2 to deduct from its taxable income an 
amount that permits it a recoupment of capital investment 
in the depleting mineral. Section 611 (a) provides: 

"In the case of mines, oil and gas wells, other natural 
deposits, and timber, there shall be allowed as a deduc- 
tion in computing taxable income a reasonable allowance 
for depletion and for depreciation of improvements, ac- 
cording to the peculiar conditions in each case ; such rea- 
sonable allowance in all cases to be made under regu- 
lations prescribed by the Secretary. . . ." 

The amount which respondent may deduct is a percent- 
age of its "gross income from the property." 26 U. S. C. 

rock finely and adds water, producing a mud known as "slurry/ 7 Re- 
spondent feeds the slurry from tanks into fired kilns that heat it into a 
hard glass-like substance known as a "clinker." Once the clinker is 
cooled, respondent grinds it with gypsum to produce finished Portland 
cement. The finished cement is placed in storage silos to await sales to 
customers. 

There is no dispute as to when respondent's mining phase ends and its 
manufacturing phase begins. Section 613 (c) (2) of the Code, 26 U. S. C. 
613(c)(2), defines "mining" to include "not merely the extraction of 
the ores or minerals from the ground but also the treatment process con- 
sidered as mining described in paragraph (4) (and the treatment processes 
necessary or incidental thereto), and so much of the transportation of ores 
or minerals (whether or not by common carrier) from the point of extrac- 
tion from the ground to the plants or mills in which such treatment 
processes are applied thereto as is not in excess of 50 miles . . . ." 
Paragraph (4) (F) of 613 (c) describes the treatment processes con- 
sidered as mining to be "in the case of calcium carbonates and other 
minerals when used in making cement all processes (other than preheat- 
ing of the kiln feed) applied prior to the introduction of the kiln feed into 
the kiln, but not including any subsequent process." 

When these definitions are applied, respondent's mining phase ends when 
the slurry has been produced and is stored in tanks to await introduction 
into the kilns. The Tax Court so found, 36 TCM 578, 579 (1977), 
f77.137, p. 582, P-H Memo TC, and the parties agree. 

2 All citations to the Internal Revenue Code are to the Code of 1954, 
unless stated otherwise. 



160 OCTOBER TERM, 1980 

Opinion of the Court 450 U. S. 

613 (a). 3 In respondent's case, gross income from property 
means "gross income from mining." 4 Thus, respondent may 
deduct from its taxable income a percentage of the gross 
income it receives from mining. 

If respondent were only a miner and therefore sold the 
product of its mining, respondent's gross income from mining 
would be the receipts from its sales. But as an integrated 
miner-manufacturer, respondent itself uses the product of its 
mining. 5 Respondent therefore has no actual gross income 
from mining and must base its depletion deduction upon a 
constructive gross income from mining. See United States 
v. Cannelton Sewer Pipe Co., 364 U. S. 76, 86 (1960). 

The Commissioner of Internal Revenue, petitioner here, 
has prescribed in Treasury Regulations two methods of deter- 
mining constructive gross income from mining. If other 
miners in the industry sell the product of their mining on an 
open market, then miners who do not sell their product must 
use "the representative market or field price" to compute 
their constructive gross income from mining. Treas. Reg. 
1.613-4 (c), 26 CFR 1.613-4 (c) (1980). If other miners 
do not sell their mining product and a representative market 



3 Section 613 (a) reads in pertinent part : 

"In the case of the mines, wells, and other natural deposits listed in 
subsection (b), the allowance for depletion under section 811 shall be the 
percentage, specified in subsection (b), of the groes income from the 
property . . . ." 

For tax years beginning on or prior to October 9, 1969, the percentage 
specified by subsection (b) of 613 for the depletion of calcium car- 
bonates, the chemical name for cement rock, was 15%. 26 U, S. C. 613 
(b)(7) (1964 ed.). For tax years beginning after October 9, 1969, the 
percentage was 14%. 26 U. S. C. 613 (b)(7). 

* Title 26 U. S. C. 613 (c)(l) (1976 ed., Supp. Ill) provides: "The 
term 'gross income from the property* means, in the case of a property 
other than an oil or gas well and other than a geothermal deposit, the gross 
income from mining." 

* See n. 1, supra. 



UUMMibfc>lUJN.&K. v. J^UJbtTJLAND CEMENT CO. OF UTAH 161 
156 Opinion of the Court 

or field price cannot be determined, as is the case in the in- 
tegrated cement industry, then constructive gross income 
from mining must be determined by the "proportionate prof- 
its method/' 1.613-4 (d). In addition to providing these 
two methods, the Commissioner also has provided that a tax- 
payer may compute a constructive gross income from mining 
by any other method that, upon the taxpayer's request, the 
Commissioner determines to be more appropriate than the 
proportionate profits method under the taxpayer's particular 
circumstances. 1.613-4 (d)(l)(ii). 6 For each of the tax 
years at issue in this case, respondent used the proportionate 
profits method to compute its constructive gross income from 
mining. 7 

The proportionate profits method uses the costs of and 
proceeds from the taxpayer's "first marketable product" to 
derive the taxpayer's constructive gross income from mining. 
The principle of the method is that each dollar of the total 
costs which the taxpayer incurs to produce, sell, and transport 
its first marketable product earns the same proportionate 
part of the proceeds from sales of that product. 1.613-4 
(d)(4)(i). The objective of the method is to identify 
from among the total proceeds from sales of the first market- 
able product that portion of the proceeds that has been 
earned by the costs which the taxpayer incurred in its mining 
operations. To identify that portion of the proceeds, the 
formula requires the taxpayer to apportion the total proceeds 
from its first marketable product between mining income and 
total income in the same ratio as its mining costs bear to its 
total costs. The amount of proceeds which bears the same 



6 The Commissioner himself has suggested two other methods that a 
taxpayer may propose as more appropriate than the proportionate profits 
method. See 26 CFR 1.613-4 (d)(l) (ii)(e), (5), (6), (1980). 

7 The three tax years at issue in this case are those ending on March 31, 
1970, 1971, and 1972. 



Opinion of the Court 450 U. S. 

relationship to total proceeds as mining costs bear to total 
costs is the taxpayer's constructive gross income from mining. 8 
On its returns for the tax years in question, respondent 
took the position that its first marketable product was cement 
sold in bulk. Respondent sells most of its cement in bulk, 
by loading finished cement directly from silos into customers' 
trucks or railroad tank cars. But respondent also sells 
cement in bags to customers who want to buy relatively 



8 The Treasury Regulations explain the proportionate profits method 
this way: 

"(i) The objective of the 'proportionate profits method' of computation is 
to ascertain gross income from mining by applying the principle that each 
dollar of the total costs paid or incurred to produce, sell, and transport the 
first marketable product or group of products (as defined in subdivision 
(iv) of this subparagraph) earns the same percentage of profit. Accord- 
ingly, in the proportionate profits method no ranking of costs is permissi- 
ble which results in excluding or minimizing the effect of any costs incurred 
to produce, sell, and transport the first marketable product or group of 
products. . . . 

"(ii) The proportionate profits method of computation is applied by 
multiplying the taxpayer's gross sales (actual or constructive) of his 
first marketable product or group of products ... by a fraction whose 
numerator is the sum of all the costs allocable to those mining processes 
which are applied to produce, sell, and transport the first marketable 
product or group of products, and whose denominator is the total of 
all the mining and nonmining costs paid or incurred to produce, sell, 
and transport the first marketable product or group of products .... 
The method as described herein is merely a restatement of the method 
formerly set forth in the second sentence of Regulations 118, section 
39.23 (m)-l (e) (3) (1939 Code). The proportionate profits method of 
computation may be illustrated by the following equation: 

MhliDg Costs X Gross S*l*B~?*** 
Total Costs fr m Mining" 

26 CFR 1.613-4 (d) (4) (i), (ii) (1980). 
The Tax Court has captured the gist of the method in fewer words: 

"The purpose of the proportionate-profits formula is to separate the sales 
price of a product into its mining and nonmining components." North 
Carolina Granite Corp. v. Commissioner, 56 T. C. 1281, 1291 (1971). 



COMMISSIONER v PORTLAND CEMENT CO. OF UTAH 163 
156 Opinion of the Court 

small quantities. 9 Cement is bagged by running it from the 
storage silo into a bin above a bagging machine, which then 
pours the cement into bags and seals them. The cost that 
respondent incurs for bags and bagging exceeds the increase 
in proceeds, known as the bagging premium, that respondent 
receives for selling cement in bags. 10 Respondent still re- 
ceives a profit on the cement it sells in bags, but less profit 
than if it had sold the cement in bulk. 11 

Because respondent considered its first marketable prod- 
uct to be cement sold in bulk rather than all cement sold, 
whether in bulk or in bags, respondent did not include pro- 
ceeds from the sale of cement in bags in the total-proceeds 
figure of the proportionate profits method. Nor did respond- 
ent include in the total-costs figure the costs it incurred for 
bags, bagging, storage, distribution, and sales. 12 The result 
of this position was that the proportionate profits method 
yielded a greater constructive gross income from mining, and 
respondent reported a correspondingly greater depletion de- 
duction, than would have been the case if respondent had 
included those proceeds and costs in its computation by the 
method. 

After an audit, the Commissioner determined that respond- 



9 During the tax years in question, respondent sold approximately 
92-94% of its finished cement in bulk. Respondent sold the other 
6-8% in bags, 

10 The parties stipulated in the Tax Court that respondent's bagging 
costs exceeded the bagging premium by $55,410.88 for tax year 1970, by 
$66,667.45 for tax year 1971, and by $64,590.41 for tax year 1972. 

11 The parties stipulated in the Tax Court "that although for each year 
there was an excess of costs over bag premium, . . . [respondent] neverthe- 
less realized a net profit on the sale of each bag of cement." 

12 To state respondent's position in the formulaic terms used in Treas. 
Reg. 1.613-4 (d) (4) (ii), 26 CFR 1.613-4 (d) (4) (ii) (1980), respondent 
did not include proceeds from the sale of cement in bags in the multiplier 
of the proportionate profits method; and respondent did not include the 
costs of bags, bagging, storage, distribution, and sales in the denominator 
of the method's fraction. 



Opinion of the Court 450 U. S. 

ent's reported tax liabilities were deficient. 13 The Commis- 
sioner took the position that respondent's first marketable 
product is cement, whether sold in bulk or in bags, that re- 
spondent therefore should have included proceeds from its 
sales of bagged cement in its total-proceeds figure, and also 
that respondent should have included in its total-costs fig- 
ure the costs it incurred for bags, bagging, storage, distribu- 
tion, and sales. Respondent then filed this suit in the Tax 
Court for a redetermination. 

The Tax Court, following its rule of applying the law of 
the court of appeals to which an appeal would be taken, 1 * 
relied upon United States v. Ideal Basic Industries, Inc., 404 
F. 2d 122 (CA10 1968), cert, denied, 395 U. S, 936 (1969), 
and accepted respondent's position. 36 TCM 578 (1977), 
IT 77,137 P-H Memo TC. Ideal Basic Industries had held 
that cement sold in bulk is the first marketable product of 
an integrated miner-manufacturer and that revenues from 
sales of cement in bags, and the costs of bags, bagging, stor- 
age, distribution, and sales, should not be included in cal- 
culations under the proportionate profits method* 404 F. 2d, 
at 125-126, The Court of Appeals for the Tenth Circuit 
affirmed, also adhering to Ideal Basic Industries. 614 F. 2d 
724 (1980) (per curiam). It rejected the Commissioner's 
argument that Treasury Regulations dictate the opposite re- 
sult. We granted the Commissioner's petition for a writ of 
certiorari because other Courts of Appeals have accepted the 
Commissioner's position in cases with substantially identical 
facts. 15 449 U. S. 818 (1980). We now reverse. 

18 The asserted deficiencies were $44,200, $41,509, and $7,175 for tax 
years 1970, 1971, and 1972, respectively. See 36 TCM, at 578, f 77,137, 
p. 582, P-H Memo TC. 

14 See Golsen v. Commissioner, 54 T. C. 742 (1970), aff'd on other 
grounds, 445 F. 2d 985 (CA10), cert, denied, 404 TJ. S. 940 (1971). 

15 See General Portland Cement Co. v. United States, 628 F, 2d 321 
(CA5 1980), cert, pending, No. 80-1211; Arvonior-Buckingham Slate Co. 
v. United States, 426 F. 2d 484 (CA4 1970) ; United States v. California 



COMMISSIONER v. PORTLAND CEMENT CO. OF UTAH 165 
156 Opinion of the Court 

II 

Congress requires in 611 that the allowance of the deple- 
tion deduction is "in all cases to be made under regulations 
prescribed by the Secretary." The Commissioner provided 
the proportionate profits method pursuant to this delegation 
of authority. 16 Also pursuant to this authority, the Commis- 
sioner has promulgated regulations which specifically address 
the questions before us. We find these regulations dispositive. 

The Treasury Regulations define "first marketable prod- 
uct" as "the product (or group of essentially the same prod- 
ucts) produced by the taxpayer as a result of the application 
of nonmining processes, in the form or condition in which 
such product or products are first marketed in significant 
quantities by the taxpayer or by others in the taxpayer's mar- 
keting area. 7 ' 26 CFR 1.613-4 (d) (4) (iv) (1980). This 
definition continues: 

"For this purpose, bulk and packaged products are con- 
sidered to be essentially the same product. . . . The 
first marketable product or group of products does not 
include any product which results from additional manu- 
facturing or other nonmining processes applied to the 
product or products first marketed in significant quanti- 



Portland Cement Co., 413 F. 2d 161 (CA9 1969); Whitehall Cement 
Manufacturing Co. v. United States, 369 F. 2d 468 (CAS 1966). 

10 The Commissioner has prescribed the computation of gross income 
from mining by reference to proportionate profits in successive regula- 
tions since 1940. The principle now set forth in Treas. Reg. 1.613-4 
(d) (4) first appeared in Treas. Regs. 103, 19.23 (m)-l (f) (1940), 
and it continued in successive regulations to the 1939 Code. Treas. Regs. 
Ill, 29.23 (m)-l (f) (1943); Treas. Regs. 118, 39.23 (m)-(e) (3) 
(1953). Treasury Regulations 118 continued in force under the 1954 
Code until superseded by Treas. Reg. 1.613-3 (d) (1) (i), (ii). See 
T. D. 6965, 1968-2 Cum. Bull. 265. These regulations were superseded by 
the present Treas. Reg. 1.613-4 (d) (1) and (4)(i), (ii), 26 CFR 
1.613-4 (d)(l) and (4)(i), (ii) (1980). See T. D. 7170, 1972-1 Cum. 
Bull. 178. 



166 OCTOBER TERM, 1980 

Opinion of the Court 450 U. S. 

ties by the taxpayer or others in the taxpayer's market- 
ing area. For example, if a cement manufacturer sells 
his own finished cement in bulk and bags and also sells 
concrete blocks or dry ready-mix aggregates containing 
additives, the finished cement, in bulk and bags, consti- 
tutes the first marketable product or group of products 
produced by him." 

This regulation supports the Commissioner's position that 
cement sold in bulk is the same product as cement sold in 
bags, and that the container for the cement whether a tank 
car supplied by the customer or a bag supplied by respond- 
ent does not distinguish cement in bulk from cement in 
bags for the purpose of determining respondent's first mar- 
ketable product. Federal Courts of Appeals other than the 
court below have relied on the regulation to uphold the 
Commissioner's position. General Portland Cement Co. v. 
United States, 628 F. 2d 321, 323 (CA5 1980), cert, pending, 
No. 80-1211; United States v. California Portland Cement 
Co., 413 F. 2d 161 (CA9 1969). Indeed, the Commissioner's 
position also is supported by respondent's stipulation in the 
Tax Court that "[t]hat portion of its cement sold ... in bags 
is the same material as the cement sold in bulk*" 

The Treasury Regulations also support the Commissioner's 
position that respondent must include in the total-costs figure 
of the method the costs of bags, bagging, storage, and distri- 
bution. To derive the portion of total proceeds that re- 
flects the ratio between respondent's mining costs and its 
total costs, respondent must include in the total-costs fig- 
ure "all the mining and nonmining costs paid or incurred to 
produce, sell, and transport the first marketable product." 
26 CFR 1.613-4 (d)(4)(ii) (1980). The exclusion of non- 
mining costs from the total-costs figure has the effect of 
including the proportionate profits earned by such costs 
within respondent's depletion base. Such inclusion enhances 



COMMISSIONER v PORTLAND CEMENT CO. OF UTAH 167 
156 Opinion of the Court 

respondent's depletion base by proceeds that were not earned 
by respondent's mining operation, and accordingly respond- 
ent's depletion deduction becomes a recoupment for more than 
the exhaustion of respondent's mine. It is undisputed, how- 
ever, that Congress allows the depletion deduction to permit 
recoupment for the exhaustion of the mineral only. See 
United States v. Cannelton Sewer Pipe Co., 364 U. S., at 81, 
85-86; Commissioner v. Southwest Exploration Co., 350 U. S. 
308, 312 (1956); General Portland Cement Co. v. United 
States, supra, at 322. It also is undisputed that the Treasury 
Regulations classify the costs of bags, bagging, storage, and 
distribution as nonmining costs. 26 CFR 1.613-4 (d) (3) 
(iii) (1980). 17 Courts of Appeals have accepted the Com- 
missioner's position on this question also. General Portland 
Cement Co. v. United States , supra, at 326; Southwestern 
Portland Cement Co. v. United States, 435 F. 2d 504, 508, 510 



17 Title 26 CFR 1.613-4 (d)(3)(iii) (1980) provides in pertinent part: 
"In determining gross income from mining by use of methods based on 

the taxpayer's costs 

"(a) The costs attributable to containers, bags, packages, pallets, and 

similar items as well as the costs of materials and labor attributable to 

bagging, packaging, palletizing, or similar operations shall be considered 

as nonmining costs 

"(c) The costs attributable to the operation of warehouses or distribu- 
tion terminals for manufactured products shall be considered as nonmin- 
ing costs. 

"Accordingly, all profits attributable thereto are treated as nonmining 
profits." 

The court below did not dispute the regulations' characterization of these 
costs. 614 F. 2d 724, 725 (1980). To the contrary, United States v. Ideal 
Basic Industries, Inc., 404 F. 2d 122 (CA10 1968), cert, denied, 395 U. S. 
936 (1969), concluded before these regulations were promulgated that such 
costs are nonmining costs. 404 F. 2d, at 125-126. But the court, follow- 
ing Ideal Basic Industries, excluded these costs from the proportionate 
profits method on the ground that they were not incurred in producing and 
transporting cement sold in bulk. See 614 F. 2d, at 726* 



168 OCTOBER TERM, 1980 

Opinion of the Court 450 U.S. 

(CA9 1970); United States v. California Portland Cement 
Co., supra, at 168-169; Whitehall Cement Manufacturing Co. 
v. United States, 369 F. 2d 468, 473-474 (('A3 1966). 

Finally, the Treasury Regulations support the Commis- 
sioner's position that respondent must include as nonmining 
costs the costs incurred in selling the first marketable prod- 
uct. The regulations provide that integrated miner-manu- 
facturers must treat sales expenses as nonmining costs absent 
evidence that unintegrated miners typically incur such ex- 
penses in selling their mineral product. 1.613-4 (d) (3) 
(iv), 1.613-5 (c) (4) (ii). 18 These regulations simply recog- 
nize that sales of finished cement occur after the point at 
which an integrated miner-manufacturer's mining phase ends 
and its manufacturing phase begins. Roe 26 IT. R. C. 613 
(c)(4)(F); cf. General Portland Cement Co. v. United States, 
supra, at 333. Integrated miner-manufacturers may allocate 
selling costs between their mining and manufacturing phases 



"Title 26 CFR 1.613-4 (d) (3)(iv) (1980) provides: 
"In computing gross income from mining by the use of methods based 
on the taxpayer's costs, the principles set forth in paragraph (c) of 
1.613-5 shall apply when determining whether selling expenses . . . are 
to be treated, in whole or in part, as mining costs or as nonmining costs. 
To the extent that selling expenses . . . are treated as nonmining costs, all 
profits attributable thereto are treated as nonmining profits/' 
Title 26 CFR 1,613-5 (c) (4) (ii) (1980) provides: 

"A reasonable portion of the expenses of selling a refined, manufactured, 
or fabricated product shall be subtracted from gross income from the 
property. Such reasonable portion shall be equivalent to the typical 
selling expenses which are incurred by unintegrated miners or producer** in 
the same mineral industry so as to maintain equality in the tax treatment 
of unintegrated miners or producers in comparison with integrated miner- 
manufacturers or producer-manufacturers. If unintegrated miners or 
producers in the same mineral industry do not typically incur any selling 
expenses, then no portion of the expenses of selling a refined, manufac- 
tured, or fabricated product shall be subtracted from gross income from 
the property when determining the taxpayer's taxable income from the 
property." 



COMMISSIONER v. PORTLAND CEMENT CO. OF UTAH 169 
156 Opinion of the Court 

if they can show that unintegrated miners typically incur 
selling expenses, for that maintains a parity of tax treatment 
between integrated miner-manufacturers and unintegrated 
miners. But respondent has not put forth such evidence in 
this case, there being no unintegrated miners in the cement 
industry. 

These regulations command our respect, for Congress has 
delegated to the Secretary of the Treasury, not to this Court, 
the task "of administering the tax laws of the Nation." 
United States v. Cartwright, 411 U. S. 546, 550 (1973); 
accord, United States v. Correll, 389 U. S. 299, 307 (1967); 
see 26 TJ. S. C. 7805 (a). We therefore must defer to 
Treasury Regulations that "implement the congressional 
mandate in some reasonable manner." United States v. Cor- 
rell, supra, at 307; accord, National Muffler Dealers Assn. v. 
United States, 440 U. S. 472, 476-477 (1979). To put the 
same principle conversely, Treasury Regulations "must be 
sustained unless unreasonable and plainly inconsistent with 
the revenue statutes." Commissioner v. South Texas Lum- 
ber Co., 333 U. S. 496, 501 (1948) ; accord, Fulman v. United 
States, 434 U. S. 528, 533 (1978); Bingler v. Johnson, 394 
U. S. 741, 749-751 (1969). Indeed, our customary deference 
to Treasury Regulations is particularly appropriate in this 
case, for the Court previously has recognized the necessity of 
a 'Abroad rule-making delegation" of authority in the area of 
depletion: "As Congress obviously could not foresee the multi- 
farious circumstances which would involve questions of de- 
pletion, it delegated to the Commissioner the duty of making 
the regulations." Douglas v. Commissioner, 322 U. S. 275, 
280, 281 (1944) ; 19 accord, Helvering v. Wilshire Oil Co., Inc., 
308 U. S. 90, 102-103 (1939). 



19 Douglas v. Commissioner involved 23, Revenue Act of 1936, which 
was identical to the present 611 in all ways significant to this case. 
See 322 U. S., at 278. 



170 OCTOBER TERM, 1980 

Opinion of the Court 450 U.S. 

Ill 

Respondent does not contend that these Treasury Regula- 
tions are either unreasonable on their face or inconsistent 
with the Code. To the contrary, respondent acknowledges 
that several courts have found the regulations to prescribe a 
reasonable formula for determining gross income from min- 
ing in cases where no actual income is realized and no repre- 
sentative market price is available. Respondent's contention 
is that the Commissioner's position will yield a distorted con- 
structive gross income from mining if it is applied without 
regard to the particular circumstances in this case. 



Respondent's position rests upon (i) an assumption about 
gross income from mining and (ii) an interpretation of this 
Court's decision in United States v. Cannelton Sewer Pipe 
Co., 364 U. S. 76 (1960). Respondent deems "gross income 
from mining," for the purpose of the percentage depletion de- 
duction, to be the same thing as "the market value of the ex- 
tracted minerals" at the end of the mining phase, Brief for 
Respondent 14; and respondent reads Cannelton to hold that, 
for the purpose of determining gross income from mining, the 
mining phase of an integrated mining-manufacturing opera- 
tion should be considered one independent business selling its 
product to another independent business, the manufacturing 
phase* On the basis of these notions, respondent perceives 
a potential for distortion of constructive gross income inher- 
ing in the premise of the proportionate profits method. The 
premise of that method is that each dollar of costs, mining 
and nonmining alike, earns the same proportionate part of 
the proceeds from the first marketable product. In respond- 
ent's view, however, it simply will not be true in some cases 
that each dollar of costs earns the same share of proceeds* 
For example, respondent contends, market forces and arm's- 
length negotiations may so affect market value when an in- 



COMMISSIONER v. PORTLAND CEMENT CO. OF UTAH 171 
156 Opinion of the Court 

dependent miner sells to an independent manufacturer that 
it will not be true that each dollar of cost earns the same 
share of proceeds; and respondent contends that it certainly 
is not true in this case that each of its dollars of cost earned 
the same share of proceeds, for the cost of bags and bagging 
exceeds the bagging premium. 

Respondent does not conclude from this reasoning that 
the proportionate profits method is unreasonable in itself. 
Rather, it argues that the method will distort constructive 
gross income from mining to the extent that the particular 
facts of a case deviate from the method's premise, and that 
the possibility of distortion increases as costs and proceeds 
attending postmining processes are included. To remedy 
this, respondent asks that the Commissioner take into ac- 
count the "peculiar" circumstance that respondent's bagging 
costs exceed its bagging premium. 20 If this were done, re- 
spondent says, the distortion that it perceives could be ob- 
viated by considering its first marketable product to be only 
cement sold in bulk, not cement sold both in bulk and in 
bags. If only bulk sales are considered to be the first mar- 
ketable product, then the proceeds from cement sold in bags, 
and the costs of bags, bagging, storage, and distribution, will 

20 In support of its argument, respondent relies in part upon the lan- 
guage of 611 (a), which provides that the depletion deduction is to be 
allowed "according to the peculiar conditions in each case." Respondent 
has read this phrase out of context. In fuller reading, 611 (a) provides: 

"In the case of mines, oil and gas wells, other natural deposits, and 
timber, there shall be allowed as a deduction in computing taxable income 
a reasonable allowance for depletion and for depreciation of improvements, 
according to the peculiar conditions in each case; such reasonable allowance 
in all cases to be made under regulations prescribed by the Secretary. . . ." 
(Emphasis added.) 

Read in context, "in each case" refers to the different types of depletable 
resource, not to individual taxpayers. Accordingly, this language does 
not support respondent's argument that the Treasury Regulations provid- 
ing the proportionate profits method must be modified with regard to 
the circumstances in each case. 



172 OCTOBER TERM, 1980 

Opinion of the Court 450 U.S. 

be excluded from the proportionate profits method. This 
was essentially the reasoning and holding of Ideal Basic In- 
dustries, 404 F. 2d, at 125-127. 

We cannot accept respondent's contention, for it misper- 
ceives both the meaning of "gross income from mining 5 ' and 
the holding in Cannelton. Respondent cites nothing to sup- 
port the assumption that gross income from mining means 
market value of the mining product. The language of 613 
(a) and (c) does not support this assumption ; and Helvering 
v. Mountain Producers Corp., 303 U. S. 376, 381-382 (1938), 
rejected it. 21 See also Commissioner v. Southwest Explora- 
tion Co., 350 U. S., at 312. Under the Code and regulations, 
gross income from mining means income received, whether 
actually or constructively, without regard to value. Nor does 
Cannelton support respondent's argument. That case did 
not involve the proportionate profits method of determining 
constructive gross income from mining. The question there, 
under an earlier statutory definition of "mining/' was when 
the mining phase ended in the operation of an integrated 
miner-manufacturer of burnt clay products. See 364 U. S., 
at 84, and n. 8. In interpreting the definition of "mining," 
the Court observed that "the Congress intended integrated 

21 Helvering v. Mountain Producers Corp. involved a depletion deduc- 
tion in the case of oil and gas wells. By contract, the owner of oil-field 
leases agreed to sell oil to an oil refiner at a set price. In return, the 
refiner agreed, as part of the price of the oil, to conduct all operations to 
develop and produce the oil. The owner then claimed that its "gross 
income from the property/' for the purpose of percentage depletion 
deduction, consisted of the total cash payments received from the refiner, 
plus the cost of production defrayed by the refiner under the contract. 
303 U. S*, at 378-379. The Court rejected this claim. It held that the 
deductible percentage of gross income "is a fixed factor, not to be in- 
creased or lessened by asserted equities," such as the fact that "gross 
income from time to time may be more or less than market value ac- 
cording to the bearing of particular contracts." Id., at 382. The Court 
added: "With the motives which lead the taxpayer to be satisfied with the 
proceeds he receives we are not concerned/' Ibid. 



COMMISSIONER v. PORTLAND CEMENT CO. OF UTAH 173 
156 Opinion of the Court 

mining-manufacturing operations to be treated as if the op- 
erator were selling the mineral mined to himself for fabrica- 
tion." Id., at 89. This statement, in the context in which 
it occurs, does not support respondent's contention that the 
method used to determine constructive gross income must 
take into account forces that might cause income to differ 
from value. 

Nor does the difference between bagging costs and the bag- 
ging premium warrant a deviation from the Treasury Regula- 
tion's definition of "first marketable product." Respondent 
receives a net profit on every bag of cement that it sells, de- 
spite the fact that bagging costs exceed markup on the prod- 
uct. It is reasonable to infer, therefore, that the costs of 
bagging the cement contribute to respondent's profits from 
sales of cement in bags. Courts of Appeals other than the 
court below have found this inference reasonable. General 
Portland Cement Co. v. United States, 628 F. 2d, at 330-331 ; 
Whitehall Cement Manufacturing Co. v. United States, 369 
F. 2d, at 474; see also United States v. California Portland 
Cement, 413 F. 2d, at 169. 

B 

There remains only respondent's contention that the costs 
it incurred in the storage, distribution, and sales of its first 
marketable product, if they must be included in the propor- 
tionate profits method, should be treated as indirect costs 
which benefit the entire mining-manufacturing operation. 
For that reason, respondent urges that these costs should be 
allocated between mining and manufacturing. 

The statutory definition of "mining" forecloses this con- 
tention. Section 613 (c)(4)(F) of the Code defines "mining" 
to include all processes t up to the introduction of the kiln 
feed into the kiln, "but not . , . any subsequent process." The 
regulations recognize that storage, distribution, and sales are 
"subsequent process [es]/ ? and we find the regulations rea- 
sonable. 26 CFR 1.613-4 (d) (3) (iii) (1980) (storage and 



174 OCTOBER TERM, 1980 

Opinion of the Court 450 U.S. 

distribution); 1.61&-4 (d) (3) (iv) and 1.613-5 (c) (4) (ii) 
(sales). These regulations allow a different treatment only 
for sales expenses. See supra, at 168-169. Respondent, who 
bore the burden of proof in the Tax Court, made no showing 
to warrant treating sales expenses as anything but nonmining 
costs. 22 

IV 

In sum, the Treasury Regulations defining first marketable 
product, and those prescribing the treatment of the costs of 
bags, bagging, storage, distribution, and sales, dictate the 
result in this case. To be sure, the proportionate profits 
method can only approximate gross income from mining. 
The Commissioner does not contend that the method does 
more than approximate. But an approximation must suffice 
absent an actual gross income from mining, and respondent 
concedes that the proportionate profits method is a reason- 
able means of approximating. The method also is a means 
that respondent accepted, as it did not seek the Commis- 
sioner's approval of any other method. 23 Accordingly, re- 
spondent must apply the method as prescribed by the 
Commissioner. 

The judgment of the Court of Appeals is reversed. 

It is so ordered. 



22 Respondent relies upon decisions which hold that an integrated miner- 
manufacturer may allocate sales expenses between mining and nonmining 
costs. E. g., United States v. California Portland Cement Co., 413 F. 
2d, at 170-172. These cases were decided before the issuance in 1972 of 
Treas. Regs. 1.613-4 (d) (3) (iv) and 1.613-5 (c) (4) (ii). Prior to 1972, 
no regulations answered the question whether selling expenses were non- 
mining costs or allocable between raining and nonmining costs. The 1972 
regulations assume, on the basis of the statutory definition of "mining," 
that they are nonmining costs. Nonetheless, the integrated miner- 
manufacturer may show otherwise* 

28 See supra, at 161, and n. 6. 



DIAMOND v. DIEHR 175 

Syllabus 



DIAMOND, COMMISSIONER OF PATENTS AND 
TRADEMARKS v. DIEHR ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF CUSTOMS AND 

PATENT APPEALS 

No. 79-1112. Argued October 14, 1980 Decided March 3, 1981 

Respondents filed a patent application claiming invention for a process 
for molding raw, uncured synthetic rubber into cured precision products. 
While it was possible, by using well-known time, temperature, and cure 
relationships, to calculate by means of an established mathematical 
equation when to open the molding press and remove the cured product, 
according to respondents the industry had not been able to measure 
precisely the temperature inside the press, thus making it difficult to 
make the necessary computations to determine the proper cure time. 
Respondents characterized their contribution to the art to reside in the 
process of constantly measuring the temperature inside the mold and 
feeding the temperature measurements into a computer that repeatedly 
recalculates the cure time by use of the mathematical equation and then 
signals a device to open the press at the proper time. The patent 
examiner rejected respondents' claims on the ground that they were 
drawn to nonstatutory subject matter under 35 U. S. C. 101, which 
provides for the issuance of patents to "[w]hoever invents or discovers 
any new and useful process, machine, manufacture, or composition of 
matter, or any new and useful improvement thereof . . . ." The Patent 
and Trademark Office Board of Appeals agreed, but the Court of Cus- 
toms and Patent Appeals reversed. 

Held: Respondents' claims recited subject matter that was eligible for 
patent protection under 101. Pp. 181-193. 

(a) For purposes of 101, a "process" is "an act, or a series of acts, 
performed upon the subject-matter to be transformed and reduced to a 
different state or thing. If new and useful, it is just as patentable as 
is a piece of machinery. . . . The machinery pointed out as suitable to 
perform the process may or may not be new or patentable." Cochrane 
v. Deener, 94 TJ. S. 780, 788. Industrial processes such as respondents' 
claims for transforming raw, uncured synthetic rubber into a different 
state or thing are the types which have historically been eligible to re- 
ceive patent-law protection. Pp, 181-184. 

(b) While a mathematical formula, like a law of nature, cannot be the 
subject of a patent, cf. Oottschalk v. Benson, 409 U. S. 63; Parker v. 



176 OCTOBER TERM, 1980 

Syllabus 450 U. S. 

Flook, 437 U S 584, respondents do not seek to patent a mathematical 
formula, but instead seek protection for a process of curing synthetic 
rubber Although their process employs a well-known mathematical 
equation, they do not seek to pre-empt the use of that equation, except 
in conjunction with all of the other steps in their claimed process. A 
claim drawn to subject matter otherwise statutory does not become 
nonstatutory simply because it uses a mathematical formula, computer 
program, or digital computer. Respondents' claims must be considered 
as a whole, it being inappropriate to dissect the claims into old and 
new elements and then to ignore the presence of the old elements in 
the analysis The questions of whether a particular invention meets 
the "novelty" requirements of 35 U. S C. 102 or the "nonobvious- 
ness" requirements of 103 do not affect the determination of whether 
the invention falls into a category of subject matter that is eligible for 
patent protection under 101. Pp. 185-191. 

(c) When a claim containing a mathematical formula implements 
or applies the formula in a structure or process which, when con- 
sidered as a whole, is performing a function which the patent laws 
were designed to protect (e. g., transforming or reducing an article 
to a different state or thing), then the claim satisfies 101 's require- 
ments. Pp, 191-193. 
602 F. 2d 982, affirmed. 

REHNQXTIST, J., delivered the opinion of the Court, in which BTOGER, 
C. J., and STEWART, WHITE, and POWELL, JJ., joined. STEVENS, J., filed 
a dissenting opinion, in which BRENNAN, MARSHALL, and BLACKMTJN, 
JJ,, joined, post, p. 193. 

Deputy Solicitor General Wallace argued the cause for peti- 
tioner. With him on the briefs were Solicitor General Mc- 
Cree, Assistant Attorney General Litvack, Harriet S. Shapiro, 
Robert B. Nicholson, Frederic Freilicher, Joseph F. Naka- 
mura, and Thomas E. Lynch. 

Robert E. Wichersham argued the cause for respondents. 
With him on the brief were Robert F. Hess, Jay M. Cantor, 
and Thomas M. Freiburger* 

*Edward S. Irons, Mary Helen Sears, and Robert P. Beshar filed a brief 
for National Semiconductor Corp. as amicus curiae urging reversal. 

Briefs of amid curiae urging affirmance were filed by Donald R. Dunner, 
Kenneth E. Kuffner, and Travis Gordon White for the American Patent 



DIAMOND v. DIEER 177 

175 Opinion of the Court 

JUSTICE RBBCNQUIST delivered the opinion of the Cburt. 

We granted certiorari to determine whether a process for 
curing synthetic rubber which includes in several of its steps 
the use of a mathematical formula and a programmed digital 
computer is patentable subject matter under 35 U. S. C. 101. 



The patent application at issue was filed by the respondents 
on August 6, 1975. The claimed invention is a process for 
molding raw, uncured synthetic rubber into cured precision 
products. The process uses a mold for precisely shaping the 
uncured material under heat and pressure and then curing 
the synthetic rubber in the mold so that the product will 
retain its shape and be functionally operative after the mold- 
ing is completed. 1 

Respondents claim that their process ensures the produc- 
tion of molded articles which are properly cured. Achieving 
the perfect cure depends upon several factors including the 
thickness of the article to be molded, the temperature of the 
molding process, and the amount of time that the article is 
allowed to remain in the press. It is possible using well- 
known time, temperature, and cure relationships to calculate 
by means of the Arrhenius equation * when to open the press 



Law Association, Inc.; by Morton C. Jacobs for Applied Data Research, 
Inc.; by Wittiam L. Mathis and Harold D. Messner for Chevron Research 
Co.; and by Reed C. Lawlor and James W. Geriak for the Los Angeles 
Patent Law Association. 

1 A "cure" is obtained by mixing curing agents into the uncured polymer 
in advance of molding, and then applying heat over a period of time. If 
the synthetic rubber is cured for the right length of time at the right 
temperature, it becomes a usable product. 

2 The equation is named after its discoverer Svante Arrhenius and has 
long been used to calculate the cure time in rubber-molding presses. The 
equation can be expressed as follows: 

In v=CZ+x 
wherein In v is the natural logarithm of v, the total required cure time; 



178 OCTOBER TERM, 1980 

Opinion of the Court 460 U. S. 

and remove the cured product. Nonetheless, according to the 
respondents, the industry has not been able to obtain uni- 
formly accurate cures because the temperature of the molding 
press could not be precisely measured, thus making it difficult 
to do the necessary computations to determine cure time. 8 
Because the temperature inside the press has heretofore been 
viewed as an uncontrollable variable, the conventional indus- 
try practice has been to calculate the cure time as the shortest 
time in which all parts of the product will definitely be 
cured, assuming a reasonable amount of mold-opening time 
during loading and unloading. But the shortcoming of this 
practice is that operating with an uncontrollable variable 
inevitably led in some instances to overestimating the mold- 
opening time and overcuring the rubber, and in other in- 
stances to underestimating that time and undercuring the 
product/ 

Respondents characterize their contribution to the art to 
reside in the process of constantly measuring the actual tem- 
perature inside the mold. These temperature measurements 
are then automatically fed into a computer which repeatedly 
recalculates the cure time by use of the Arrhenius equation. 



C is the activation constant, a unique figure for each batch of each com- 
pound being molded, determined in accordance with rheometer measure- 
meats of each batch; Z is the temperature in the mold; and x is a con- 
stant dependent on the geometry of the particular mold in the press. A 
rheometer is an instrument to measure flow of viscous substances. 

8 During the time a press is open for loading, it will cool. The longer it 
is open, the cooler it becomes and the longer it takes to reheat the press 
to the desired temperature range. Thus, the time necessary to raise the 
mold temperature to curing temperature is an unpredictable variable. The 
respondents claim to have overcome this problem by continuously measur- 
ing the actual temperature in the closed press through the use of a 
thermocouple. 

4 We note that the petitioner does not seriously contest the respond- 
ents' assertions regarding the inability of the industry to obtain accurate 
cures on a uniform basis. See Brief for Petitioner 3. 



DIAMOND v. DIEHR 179 

175 Opinion of the Court 

When the recalculated time equals the actual time that has 
elapsed since the press was closed, the computer signals a 
device to open the press. According to the respondents, the 
continuous measuring of the temperature inside the mold 
cavity, the feeding of this information to a digital computer 
which constantly recalculates the cure time, and the signaling 
by the computer to open the press, are all new in the art. 

The patent examiner rejected the respondents' claims on 
the sole ground that they were drawn to nonstatutory subject 
matter under 35 U. S. C. 101. 5 He determined that those 



5 Respondents' application contained 11 different claims. Three exam- 
ples are claims 1, 2, and 11 which provide: 

"1. A method of operating a rubber-molding press for precision molded 
compounds with the aid of a digital computer, comprising: 

"providing said computer with a data base for said press including at 
least, 

"natural logarithm conversion data (In), 

"the activation energy constant (C) unique to each batch of said com- 
pound being molded, and 

"a constant (x) dependent upon the geometry of the particular mold of 
the press, 

"initiating an interval timer in said computer upon the closure of the 
press for monitoring the elapsed time of said closure, 

"constantly determining the temperature (Z) of the mold at a location 
closely adjacent to the mold cavity in the press during molding, 

"constantly providing the computer with the temperature (Z) , 

"repetitively calculating in the computer, at frequent intervals during 
each cure, the Arrhenius equation for reaction time during the cure, which 
is 

"In v=CZ+x 

"where v is the total required cure time, 

"repetitively comparing in the computer at said frequent intervals dur- 
ing the cure each said calculation of the total required cure time calculated 
with the Arrhenius equation and said elapsed time, and 

"opening the press automatically when a said comparison indicates 
equivalence. 

"2. The method of claim 1 including measuring the activation energy 
constant for the compound being molded in the press with a rheometer 
and automatically updating said data base within the computer in the 



180 OCTOBER TERM, 1980 

Opinion of the Court 460 U.S. 

steps in respondents' claims that are carried out by a computer 
under control of a stored program constituted nonstatutory 
subject matter under this Court's decision in Gottschalk v. 
Benson, 409 U. S. 63 (1972), The remaining steps install- 
ing rubber in the press and the subsequent closing of the 

event of changes in the compound being molded in said press as measured 
by said rheometer. 



"11. A method of manufacturing precision molded articles from selected 
synthetic rubber compounds in an openable rubber molding press having 
at least one heated precision mold, comprising: 

"(a) heating said mold to a temperature range approximating a pre- 
determined rubber curing temperature, 

"(b) installing prepared unmolded synthetic rubber of a known com- 
pound in a molding cavity of predetermined geometry as defined by said 
mold, 

"(c) closing said press to mold said rubber to occupy said cavity in 
conformance with the contour of said mold and to cure said rubber by 
transfer of heat thereto from said mold, 

"(d) initiating an interval timer upon the closure of said press for moni- 
toring the elapsed time of said closure, 

"(e) heating said mold during said closure to maintain the temperature 
thereof within said range approximating said rubber curing temperature, 

"(f) constantly determining the temperature of said mold at a location 
closely adjacent said cavity thereof throughout closure of said press, 

"(g) repetitively calculating at frequent periodic intervals throughout 
closure of said press the Arrhenms equation for reaction time of said rub- 
ber to determine total required cure time v as follows: 

"In v=cz+x 

"wherein c is an activation energy constant determined for said rubber 
being molded and cured in said press, z is the temperature of said mold at 
the time of each calculation of said Arrhenius equation, and x is a constant 
which is a function of said predetermined geometry of said mold, 

"(h) for each repetition of calculation of said Arrhenius equation herein, 
comparing the resultant calculated total required cure time with the moni- 
tored elapsed time measured by said interval timer, 

"(i) opening said press when a said comparison of calculated total re- 
quired cure time and monitored elapsed time indicates equivalence, and 

"(j) removing from said mold the resultant precision molded aoad cured 
rubber article." 



DIAMOND v. DIEHB 181 

175 Opinion of the Court 

press were "conventional and necessary to the process and 
cannot be the basis of patentability." The examiner con- 
cluded that respondents' claims defined and sought protection 
of a computer program for operating a rubber-molding press. 

The Patent and Trademark Office Board of Appeals agreed 
with the examiner, but the Court of Customs and Patent 
Appeals reversed. In re Diehr, 602 F. 2d 892 (1979). The 
court noted that a claim drawn to subject matter otherwise 
statutory does not become nonstatutory because a computer 
is involved. The respondents' claims were not directed to a 
mathematical algorithm or an improved method of calcula- 
tion but rather recited an improved process for molding rub- 
ber articles by solving a practical problem which had arisen 
in the molding of rubber products. 

The Commissioner of Patents and Trademarks sought cer- 
tiorari arguing that the decision of the Court of Customs and 
Patent Appeals was inconsistent with prior decisions of this 
Court. Because of the importance of the question presented, 
we granted the writ. 445 U. S. 926 (1980). 

II 

Last Term in Diamond v. Chakrabarty, 447 TJ. S. 303 
(1980), this Court discussed the historical purposes of the 
patent laws and in particular 35 U. S. C. 101. As in 
Chakrabarty, we must here construe 35 U. S. C, 101 which 
provides: 

'^Whoever invents or discovers any new and useful 
process, machine, manufacture, or composition of matter, 
or any new and useful improvement thereof, may obtain 
a patent therefor, subject to the conditions and require- 
ments of this title." 



"The word "process" is defined in 35 U. S. C. 100 (b) : 

"The term 'process' means process, art or method, and includes a new 

use of a known process, machine, manufacture, composition of matter, or 

material." 



182 OCTOBER TERM, 1980 

Opinion of the Court 460 U. S. 

In cases of statutory construction, we begin with the lan- 
guage of the statute. Unless otherwise defined, "words will 
be interpreted as taking their ordinary, contemporary, com- 
mon meaning/' Perrin v. United States, 444 U. S. 37, 42 
(1979), and, in dealing with the patent laws, we have more 
than once cautioned that "courts 'should not read into the 
patent laws limitations and conditions which the legislature 
has not expressed/ " Diamond v. Chakrabarty , supra, at 308, 
quoting United States v. Dubilier Condenser Corp., 289 U. S. 
178, 199 (1933). 

The Patent Act of 1793 defined statutory subject matter as 
"any new and useful art, machine, manufacture or composi- 
tion of matter, or any new or useful improvement [thereof]." 
Act of Feb. 21, 1793, ch. 11, 1, 1 Stat. 318. Not until the 
patent laws were recodified in 1952 did Congress replace the 
word "art" with the word "process." It is that latter word 
which we confront today, and in order to determine its mean- 
ing we may not be unmindful of the Committee Reports 
accompanying the 1952 Act which inform us that Congress 
intended statutory subject matter to "include anything under 
the sun that is made by man." S. Rep, No, 1979, 82d Cong., 
2d Sess., 5 (1952) ; H. R, Rep. No. 1923, 82d Cong., 2d Sess., 
6 (1952). 

Although the term "process" was not added to 35 U. S. C. 
101 until 1952, a process has historically enjoyed patent 
protection because it was considered a form of "art" as that 
term was used in the 1793 Act. 7 In defining the nature of a 
patentable process, the Court stated: 

"That a process may be patentable, irrespective of the 

r ln Corning v. Burden, 15 How, 252, 267-268 (1854), this Court 
explained: 

"A process, eo nomine, is not made the subject of a patent in our act of 
congress. It is included under the general term 'useful art/ An art may 
require one or more processes or machines in order to produce a certain 
result or manufacture. The term machine includes every mechanical 
device or combination of mechanical powers and devices to perform some 



DIAMOND v. DIEHB, 183 

175 Opinion of the Court 

particular form of the instrumentalities used, cannot be 
disputed. ... A process is a mode of treatment of 
certain materials to produce a given result. It is an act, 
or a series of acts, performed upon the subject-matter to 
be transformed and reduced to a different state or thing. 
If new and useful, it is just as patentable as is a piece 
of machinery. In the language of the patent law, it is 
an art. The machinery pointed out as suitable to per- 
form the process may or may not be new or patentable; 
whilst the process itself may be altogether new, and 
produce an entirely new result. The process requires 



function and produce a certain effect or result. But where the result or 
effect is produced by chemical action, by the operation or application of 
some element or power of nature, or of one substance to another, such 
modes, methods, or operations, are caJled processes. A new process is 
usually the result of discovery; a machine, of invention. The arts of tan- 
ning, dyeing, making water-proof cloth, vulcanizing India rubber, smelting 
ores, and numerous others, are usually carried on by processes as dis- 
tinguished from machines. One may discover a new and useful improve- 
ment in the process of tanning, dyeing, &c., irrespective of any particular 
form of machinery or mechanical device. And another may invent a 
labor-saving machine by which this operation or process may be per- 
formed, and each may be entitled to his patent. As, for instance, A has 
discovered that by exposing India rubber to a certain degree of heat, in 
mixture or connection with certain metalic salts, he can produce a valuable 
product, or manufacture; he is entitled to a patent for his discovery, as a 
process or improvement in the art, irrespective of any machine or mechani- 
cal device. B, on the contrary, may invent a new furnace or stove, or 
steam apparatus, by which this process may be carried on with much 
saving of labor, and expense of f ud ; and he will be entitled to a patent for 
his machine, as an improvement in the art. Yet A could not have a 
patent for a machine, or B for a process; but each would have a patent 
for the means or method of producing a certain result, or effect, and not 
for the result or effect produced. It is for the discovery or invention of 
some practical method or means of producing a beneficial result or effect, 
that a patent is granted, and not for the result or effect itself. It is when 
the term process is used to represent the means or method of producing a 
result that it is patentable, and it win include all methods or means which 
are not effected by mechanism or mechanical combinations." 



184 OCTOBER TERM, 1980 

Opinion of the Court 450 U. S. 

that certain things should be done with certain sub- 
stances, and in a certain order; but the tools to be used 
in doing this may be of secondary consequence." Coch- 
rane v. Deener, 94 U. S. 780, 787-788 (1877). 

Analysis of the eligibility of a claim of patent protection 
for a "process" did not change with the addition of that term 
to 101. Recently, in Gottschalk v. Benson, 409 U. S. 63 
(1972), we repeated the above definition recited in Cochrane 
v. Deener, adding: "Transformation and reduction of an ar- 
ticle 'to a different state or thing' is the clue to the patent- 
ability of a process claim that does not include particular 
machines/' 409 U. S., at 70. 

Analyzing respondents' claims according to the above state- 
ments from our cases, we think that a physical and chemical 
process for molding precision synthetic rubber products falls 
within the 101 categories of possibly patentable subject 
matter. That respondents' claims involve the transforma- 
tion of an article, in this case raw, uncured synthetic rubber, 
into a different state or thing cannot be disputed. The re- 
spondents' claims describe in detail a step-by-step method for 
accomplishing such, beginning with the loading of a mold 
with raw, uncured rubber and ending with the eventual open- 
ing of the press at the conclusion of the cure. Industrial 
processes such as this are the types which have historically 
been eligible to receive the protection of our patent laws. 8 



8 We note that as early as 1854 this Court approvingly referred to 
patent eligibility of processes for curing rubber. See id., at 267; n. 7, 
supra. In TUghman v. Proctor, 102 U. S. 707 (1881), we referred to the 
original patent Charles Goodyear received on his process for "vulcanising" 
or curing rubber. We stated: 

"That a patent can be granted for a process, there can be no doubt. 
The patent law is not confined to new machines and new compositions of 
matter, but extends to any new and useful art or manufacture. A manu- 
facturing process is clearly an art, within the meaning of the law. Good- 
year's patent was for a process, namely, the process of vulcanizing india- 
rubber by subjecting it to a high degree of heat when mixed with sulphur 



DIAMOND v. DIEHR 185 

175 Opinion of the Court 

m 

Our conclusion regarding respondents' claims is not altered 
by the fact that in several steps of the process a mathemati- 
cal equation and a programmed digital computer are used. 
This Court has undoubtedly recognized limits to 101 and 
every discovery is not embraced within the statutory terms. 
Excluded from such patent protection are laws of nature, 
natural phenomena, and abstract ideas. See Parker v. Flook, 
437 TJ. S. 584 (1978); Gottschalk v. Benson, supra, at 67; 
Funk Bros. Seed Co. v. Kalo Inoculant Co., 333 U. S. 127, 130 
(1948). "An idea of itself is not patentable," Rubber-Tip 
Pencil Co. v. Howard, 20 Wall. 498, 507 (1874). "A principle, 
in the abstract, is a fundamental truth; an original cause; 
a motive; these cannot be patented, as no one can claim in 
either of them an exclusive right." Le Roy v. Tatham, 14 
How. 156, 175 (1853). Only last Term, we explained: 

"[A] new mineral discovered in the earth or a new plant 
found in the wild is not patentable subject matter. Like- 
wise, Einstein could not patent his celebrated law that 
E=mc 2 ; nor could Newton have patented the law of 
gravity. Such discoveries are 'manifestations of ... 
nature, free to all men and reserved exclusively to none/ " 
Diamond v. Chakrabarty, 447 U. S., at 309, quoting Funk 
Bros. Seed Co. v. Kalo Inoculant Co., supra, at 130. 

Our recent holdings in Gottschalk v. Benson, supra, and 
Parker v. Flook, supra, both of which are computer-related, 
stand for no more than these long-established principles. 
In Benson, we held unpatentable claims for an algorithm 
used to convert binary code decimal numbers to equivalent 
pure binary numbers. The sole practical application of the 
algorithm was in connection with the programming of a 



and a mineral salt. The apparatus for performing the process was not 
patented, and was not material. The patent pointed out how the process 
could be effected, and that was deemed sufficient." Id,, at 722. 



Opinion of the Court 450 U. S. 

general purpose digital computer. We defined "algorithm" 
as a "procedure for solving a given type of mathematical 
problem/' and we concluded that such an algorithm, or mathe- 
matical formula, is like a law of nature, which cannot be 
the subject of a patent. 9 

Parker v. Flook, supra, presented a similar situation. The 
claims were drawn to a method for computing an "alarm 
limit." An "alarm limit" is simply a number and the Court 
concluded that the application sought to protect a formula 
for computing this number. Using this formula, the updated 
alarm limit could be calculated if several other variables were 
known. The application, however, did not purport to ex- 
plain how these other variables were to be determined, 10 nor 



9 The term "algorithm" is subject to a variety of definitions. The 
petitioner defines the term to mean: 

" '1. A fixed step-by-step procedure for accomplishing a given result; usu- 
ally a simplified procedure for solving a complex problem, also a full state- 
ment of a finite number of steps. 2. A defined process or set of rules that 
leads [sfc] and assures development of a desired output from a given 
input. A sequence of formulas and/or algebraic/logical steps to calculate 
or determine a given task; processing rules/" Brief for Petitioner m 
Diamond v. Bradley, 0. T. 1980, No. 79-855, p. 6, n. 12, quoting C. Sippl 
& R. Sippl, Computer Dictionary and Handbook 23 (2d ed. 1972), 

This definition is significantly broader than the definition this Court em- 
ployed in Benson and Flook. Our previous decisions regarding the pat- 
entability of "algorithms" are necessarily limited to the more narrow 
definition employed by the Court, and we do not pass judgment on whether 
processes falling outside the definition previously used by this Court, 
but within the definition offered by the petitioner, would be patentable 
subject matter. 

10 As we explained in Flook, in order for an operator using the formula 
to calculate an updated alarm limit the operator would need to know the 
original alarm base, the appropriate margin of safety, the time interval that 
should elapse between each updating, the current temperature (or other 
process variable), and the appropriate weighing factor to be used to aver- 
age the alarm base and the current temperature. 437 IT. S., at 586, The 
patent application did not "explain how to select the approximate margin 
of safety, the weighing factor, or any of the other variables/' Ibid. 



DIAMOND v. DIEHR 187 

175 Opinion of the Court 

did it purport "to contain any disclosure relating to the chemi- 
cal processes at work, the monitoring of process variables, or 
the means of setting off an alarm or adjusting an alarm sys- 
tem. All that it provides is a formula for computing an up- 
dated alarm limit." 437 U. S., at 586. 

In contrast, the respondents here do not seek to patent a 
mathematical formula. Instead, they seek patent protection 
for a process of curing synthetic rubber. Their process ad- 
mittedly employs a well-known mathematical equation, but 
they do not seek to pre-empt the use of that equation. 
Rather, they seek only to foreclose from others the use of that 
equation in conjunction with all of the other steps in their 
claimed process. These include installing rubber in a press, 
closing the mold, constantly determining the temperature of 
the mold, constantly recalculating the appropriate cure time 
through the use of the formula and a digital computer, and 
automatically opening the press at the proper time. Ob- 
viously, one does not need a "computer" to cure natural or 
synthetic rubber, but if the computer use incorporated in the 
process patent significantly lessens the possibility of "over- 
curing" or "undercuring," the process as a whole does not 
thereby become unpatentable subject matter. 

Our earlier opinions lend support to our present conclusion 
that a claim drawn to subject matter otherwise statutory 
does not become nonstatutory simply because it uses a 
mathematical formula, computer program, or digital com- 
puter. In Gottschalk v. Benson we noted: "It is said that 
the decision precludes a patent for any program servicing 
a computer. We do not so hold." 409 U. S., at 71. Simi- 
larly, in Parker v. Flook we stated that "a process is not un- 
patentable simply because it contains a law of nature or a 
mathematical algorithm." 437 TL S., at 590. It is now com- 
monplace that an application of a law of nature or mathemat- 
ical formula to a known structure or process may well be 
deserving of patent protection. See, e. g., Funk Bros. Seed 



Opinion of the Court 450 U. S. 

Co. v. Mo Inoculant Co., 333 U. S. 127 (1948) ; Eibel Process 
Co. v. Minnesota & Ontario Paper Co., 261 U. S. 45 (1923) ; 
Cochrane v. Deener, 94 U. S. 780 (1877); O'Reilly v. Morse, 
15 How. 62 (1854); and Le Roy v. Tatham, 14 How. 156 
(1853). As Justice Stone explained four decades ago: 

"While a scientific truth, or the mathematical expres- 
sion of it, is not a patentable invention, a novel and use- 
ful structure created with the aid of knowledge of scien- 
tific truth may be." Mackay Radio & Telegraph Co. 
v. Radio Corp. of America, 306 U. S. 86, 94 (1939). 1X 

We think this statement in Mackay takes us a long way 
toward the correct answer in this case. Arrhenius' equation 
is not patentable in isolation, but when a process for curing 
rubber is devised which incorporates in it a more efficient solu- 
tion of the equation, that process is at the very least not 
barred at the threshold by 101. 

In determining the eligibility of respondents' claimed 
process for patent protection under 101, their claims must 
be considered as a whole. It is inappropriate to dissect the 
claims into old and new elements and then to ignore the 
presence of the old elements in the analysis* This is par- 
ticularly true in a process claim because a new combination 
of steps in a process may be patentable even though all the 
constituents of the combination were well known and in 
common use before the combination was made. The "nov- 
elty" of any element or steps in a process, or even of the 

11 We noted in Funk Bros. Seed Co. v. Kalo Inoculant Co., 333 U. S. 
127, 130 (194S): 

"He who discovers a hitherto unknown phenomenon of nature has no 
claim to a monopoly of it which the law recognizes* If there is to be 
invention from such a discovery, it must come from the application of the 
law of nature to a new and useful end." 

Although we were dealing with a "product" claim in Funk Bros., the same 
principle applies to a process claim. Oottschalk v. Benson, 409 U. S. 63, 
68 (1972), 



DIAMOND v. DIEHR 189 

175 Opinion of the Court 

process itself, is of no relevance in determining whether the 
subject matter of a claim falls within the 101 categories of 
possibly patentable subject matter. 12 

It has been urged that novelty is an appropriate considera- 
tion under 101. Presumably, this argument results from 
the language in 101 referring to any "new and useful" 
process, machine, etc. Section 101, however, is a general 
statement of the type of subject matter that is eligible for 
patent protection "subject to the conditions and requirements 
of this title." Specific conditions for patentability follow 
and 102 covers in detail the conditions relating to novelty. 18 



12 It is argued that the procedure of dissecting a claim into old and new 
elements is mandated by our decision in Flook which noted that a mathe- 
matical algorithm must be assumed to be within the "prior art." It is 
from this language that the petitioner premises his argument that if 
everything other than the algorithm is determined to be old in the art, 
then the claim cannot recite statutory subject matter. The fallacy in this 
argument is that we did not hold in Flook that the mathematical algorithm 
could not be considered at all when making the 101 determination. To 
accept the analysis proffered by the petitioner would, if carried to its 
extreme, make all inventions unpatentable because all inventions can be re- 
duced to underlying principles of nature which, once known, make their 
implementation obvious. The analysis suggested by the petitioner would 
also undermine our earlier decisions regarding the criteria to consider in 
determining the eligibility of a process for patent protection. See, e. g., 
Oottschalk v. Benson, supra; and Cochrane v. Deener, 94 U. S. 780 (1877). 

18 Section 102 is titled "Conditions for patentability; novelty and loss 
of right to patent/ 1 and provides: 

"A person shall be entitled to a patent unless 

"(a) the invention was known or used by others in this country, or 
patented or described in a printed publication in this or a foreign country, 
before the invention thereof by the applicant for patent, or 

"(b) the invention was patented or described in a printed publication in 
this or a foreign country or in public use or on sale in this country, more 
than one year prior to the date of the application for patent in the United 
States, or 

"(c) he has abandoned the invention, or 

"(d) the invention was first patented or caused to be patented, or was 



Opinion of the Court 450 U.S. 

The question therefore of whether a particular invention is 
novel is "wholly apart from whether the invention falls into a 
category of statutory subject matter." In re Bergy, 596 P. 
2d 952, 961 CCCPA 1979) (emphasis deleted). See also 
Nickola v. Peterson, 580 F. 2d 898 (CA6 1978). The legisla- 
tive history of the 1952 Patent Act is in accord with this rea- 
soning. The Senate Report stated : 

"Section 101 sets forth the subject matter that can be 
patented, 'subject to the conditions and requirements of 
this title. 1 The conditions under which a patent may be 
obtained follow, and Section 102 covers the conditions 
relating to novelty!' S. Rep. No. 1979, 82d Cong., 2d 
Sess.,5 (1952) (emphasis supplied). 

It is later stated in the same Report: 

"Section 102, in general, may be said to describe the 
statutory novelty required for patentability, and in- 



the subject of an inventor's certificate, by the applicant or his legal rep- 
resentatives or assigns in a foreign country prior to the date of the appli- 
cation for patent in this country on an application for patent or inventor's 
certificate filed more than twelve months before the filing of the applica- 
tion in the United States, or 

"(e) the invention was described in a patent granted on an application 
for patent by another filed in the United States before the invention 
thereof by the applicant for patent, or on an international application by 
another who has fulfilled the requirements of paragraphs (1), (2), and (4) 
of section 371 (c) of this title before the invention thereof by the applicant 
for patent, or 

"(f) he did not himself invent the subject matter sought to be patented, 
or 

"(g) before the applicant's invention thereof the invention was made in 
this country by another who had not abandoned, suppressed, or concealed 
it. In determining priority of invention there shall be considered not 
only the respective dates of conception and reduction to practice of the 
invention, but also the reasonable diligence of one who was first to conceive 
and last to reduce to practice, from a time prior to conception by the 
other/' 



DIAMOND v. DIEHR 191 

175 Opinion of the Court 

eludes, in effect, an amplification and definition of 'new' 
in section 101." Id., at 6. 

Finally, it is stated in the "Revision Notes" : 

"The corresponding section of [the] existing statute is 
split into two sections, section 101 relating to the subject 
matter for which patents may be obtained, and section 
102 defining statutory novelty and stating other condi- 
tions for patentability." Id., at 17. 

See also H. R. Rep. No. 1923, 82d Cong., 2d Sess., 6, 7, and 17 
(1952). 

In this case, it may later be determined that the respond- 
ents' process is not deserving of patent protection because it 
fails to satisfy the statutory conditions of novelty under 102 
or nonobviousness under 103. A rejection on either of these 
grounds does not affect the determination that respondents' 
claims recited subject matter which was eligible for patent 
protection under 101. 

IV 

We have before us today only the question of whether re- 
spondents' claims fall within the 101 categories of possibly 
paten table subject matter. We view respondents' claims as 
nothing more than a process for molding rubber products 
and not as an attempt to patent a mathematical formula. 
We recognize, of course, that when a claim recites a mathe- 
matical formula (or scientific principle or phenomenon of 
nature), an inquiry must be made into whether the claim 
is seeking patent protection for that formula in the abstract. 
A mathematical formula as such is not accorded the protec- 
tion of our patent laws, Gottschalk v. Benson, 409 U. S. 63 
(1972), and this principle cannot be circumvented by at- 
tempting to limit the use of the formula to a particular techno- 
logical environment. Parker v. Flook, 437 TJ. S. 584 (1978). 
Similarly, insignificant postsolution activity will not trans- 



Opinion of the Court 450 U. 8. 

form an unpatentable principle into a patentable process. 
Ibid? 4 To hold otherwise would allow a competent drafts- 
man to evade the recognized limitations on the type of sub- 
ject matter eligible for patent protection. On the other hand, 
when a claim containing a mathematical formula implements 
or applies that formula in a structure or process which, when 
considered as a whole, is performing a function which the 
patent laws were designed to protect (e. g., transforming or 
reducing an article to a different state or thing), then the 
claim satisfies the requirements of 10L Because we do not 
view respondents' claims as an attempt to patent a mathe- 
matical formula, but rather to be drawn to an industrial proc- 



14 Arguably, the claims in Flook did more than present a mathematical 
formula. The claims also solved the calculation in order to produce a new 
number or "alarm limit" and then replaced the old number with the num- 
ber newly produced. The claims covered all uses of the formula in proc- 
esses "comprising the catalytic chemical conversion of hydrocarbons." 
There are numerous such processes in the petrochemical and oil refinery 
industries and the claims therefore covered a broad range of potential uses. 
437 U. S., at 586. The claims, however, did not cover every conceivable 
application of the formula. We rejected in Flook the argument that be- 
cause all possible uses of the mathematical formula were not pre-empted, 
the claim should be eligible for patent protection. Our reasoning- in Flook 
is in no way inconsistent with our reasoning here. A mathematical for- 
mula does not suddenly become patentable subject matter simply by hav- 
ing the applicant acquiesce to limiting the reach of the patent for the 
formula to a particular technological use. A mathematical formula in the 
abstract is nonstatutory subject matter regardless of whether the patent is 
intended to cover all uses of the formula or only limited uses. Similarly, a 
mathematical formula does not become patentable subject matter merely 
by including in the claim for the formula token postsolution activity such 
as the type claimed in Flook. We were careful to note in Flook that the 
patent application did not purport to explain how the variables used in 
the formula were to be selected, nor did the application contain any dis- 
closure relating to chemical processes at work or the meajis of setting off 
an alarm or adjusting the alarm limit. Ibid. All the application pro- 
vided was a "formula for computing an updated alarm limit/' Ibid. 



DIAMOND v. DIEHR 193 

175 STEVENS, J., dissenting 

ess for the molding of rubber products, we Affirm the judg- 
ment of the Court of Customs and Patent Appeals. 15 

It is so ordered. 

JUSTICE STEVENS, with whom JUSTICE BRENDAN", JUSTICE 
MARSHALL, and JUSTICE BLACKMUN join, dissenting. 

The starting point in the proper adjudication of patent 
litigation is an understanding of what the inventor claims 

15 The dissent's analysis rises and falls on its characterization of re- 
spondents' claims as presenting nothing more than "an improved method 
of calculating the time that the mold should remain closed during the 
curing process." Post, at 206-207. The dissent states that respondents 
claim only to have developed "a new method of programming a digital 
computer in order to calculate promptly and repeatedly the correct 
curing time in a familiar process." Post, at 213. Respondents' claims, 
however, are not limited to the isolated step of "programming a digital 
computer." Bather, respondents' claims describe a process of curing 
rubber beginning with the loading of the mold and ending with the 
opening of the press and the production of a synthetic rubber product 
that has been perfectly cured a result heretofore unknown in the art. 
See n. 5, supra. The fact that one or more of the steps in respondents' 
process may not, in isolation, be novel or independently eligible for 
patent protection is irrelevant to the question of whether the claims as 
a whole recite subject matter eligible for patent protection under 101. 
As we explained when discussing machine patents in Deepsouth Packing 
Co. v. Laitram Corp., 406 U. S. 518 (1972) : 

"The patents were warranted not by the novelty of their elements but 
by the novelty of the combination they represented. Invention was 
recognized because Laitram's assignors combined ordinary elements in an 
extraordinary way a novel union of old means was designed to achieve 
new ends. Thus, for both inventions 'the whole in some way exceed [ed] 
the sum of its parts.' Great A. & P. Tea Co, v. Supermarket Equipment 
Corp., 340 U. S. 147, 152 (1950)." Id., at 521-522 (footnote omitted). 

In order for the dissent to reach its conclusion it is necessary for \t 
to read out of respondents' patent application all the steps in the claimed 
process which it determined were not novel or "inventive." That is not 
the purpose of the 101 inquiry and conflicts with the proposition recited 
above that a claimed invention may be entitled to patent protection even 
though some or all of its elements are not "novel." 



194: IXJrUJBJfiK, TJUKM, 198U 

STEVENS, J., dissenting 450 U.S. 

to have discovered. The Court's decision in this case rests 
on a misreading of the Diehr and Lutton patent application. 
Moreover, the Court has compounded its error by ignoring 
the critical distinction between the character of the subject 
matter that the inventor claims to be novel the 101 is- 
sue and the question whether that subject matter is in fact 
novel the 102 issue. 

I 

Before discussing the major flaws in the Court's opinion, a 
word of history may be helpful. As the Court recognized in 
Parker v. Flook, 437 U. S. 584, 595 (1978), the computer in- 
dustry is relatively young. Although computer technology 
seems commonplace today, the first digital computer capable 
of utilizing stored programs was developed less than 30 years 
ago. 1 Patent law developments in response to this new tech- 
nology are of even more recent vintage. The subject of legal 
protection for computer programs did not begin to receive 
serious consideration until over's decade after completion of 
the first programmable digital computer.* It was 1968 be- 

1 ENIAC, the first general purpose electronic digital computer, was 
built in 1946. Unlike modern computers, this machine was externally 
programmed; its circuitry had to be manually rewired each time it was 
used to perform a new task. See Gemignani, Legal Protection for Computer 
Software: The View From 79, 7 Rutgers J. Computers, Tech. & L. 269, 270 
(1980). In 1952, a group of scientists at the Institute for Advanced Study 
completed MANIAC I, the first digital computer capable of operating 
upon stored programs, as opposed to hard-wired circuitry. See Ulain, 
Computers, 211 Scientific American 203 (1964). 

2 The subject received some scholarly attention prior to 1964. See, 
e. g. f Seidd, Antitrust, Patent and Copyright Law Implications of Com- 
puter Technology, 44 J. Pat, OS. Soc. 116 (1962); Comment, The 
Patentability of Computer Programs, 38 N. Y. II. L. Rev. 891 (1963). 
In 1964, the Copyright Office began registering computer programs. See 
11 Copyright Soc. Bull. 361 (1964); Davis, Computer Programs and 
Subject Matter Patentability, 6 Rutgers J. Computers, Tech. & L. 1, 5 
(1977). Also in 1964, the Patent Office Board of Appeals issued what 
appears to be the first published opinion concerning the patentability of a 
computer-related invention. See Sx parte King, 146 USPQ 590. 



DIAMOND v. DIEHR 195 

175 STEVENS, J., dissenting 

fore the federal courts squarely addressed the subject, 3 and 
1972 before this Court announced its first decision in the 
area. 4 

Prior to 1968, well-established principles of patent law 
probably would have prevented the issuance of a valid patent 
on almost any conceivable computer program. Under the 
"mental steps" doctrine, processes involving mental opera- 
tions were considered unpatentable. See, e. g., In re Herit- 
age, 32 C. C. P. A. (Pat.) 1170, 1173-1177, 150 F. 2d 554, 556- 
558 (1945) ; In re Shoo Wen Yuan, 38 C. C. P. A. (Pat.) 967, 
972^976, 188 F. 2d 377, 380-383 (1951). The mental-steps 
doctrine was based upon the familiar principle that a scientific 
concept or mere idea cannot be the subject of a valid patent. 
See In re Bolongaro, 20 C. C. P. A. (Pat.) 845, 846-847, 62 
F. 2d 1059, 1060 (1933). 5 The doctrine was regularly in- 
voked to deny patents to inventions consisting primarily of 
mathematical formulae or methods of computation. 6 It was 
also applied against patent claims in which a mental opera- 
tion or mathematical computation was the sole novel element 
or inventive contribution; it was clear that patentability 



3 7n re Prater, 56 C. C. P. A. (Pat.) 1360, 415 F. 2d 1378 (1968), 
modified on rehearing, 56 C. C. P. A. (Pat.) 1381, 415 F. 2d 1393 (1969), 
is generally identified as the first significant judicial decision to consider 
the subject-matter patentability of computer program-related inventions. 
The Court of Customs and Patent Appeals earlier decided In re Naquin, 
55 C. C. P. A. (Pat.) 1428, 398 F. 2d 863 (1968), in which it rejected a 
challenge to an application for a patent on a program-related invention 
on grounds of inadequate disclosure under 112. 

4 See Gottschalk v. Benson, 409 TJ. S. 63 (1972). 

B See also Novick & Wallenstein, The Algorithm and Computer Software 
Patentability: A Scientific View of a Legal Problem, 7 Rutgers J. Com- 
puters, Tech. & L. 313, 316-317 (1980). 

6 See, e. g., Don Lee, Inc. v. Walker, 61 F. 2d 58, 67 (CA9 1932) ; In 
re Bolongaro, 20 C. C. P. A. (Pat.) 845, 846-847, 62 F. 2d 1059, 1060 
(1933) ; In re Shao Wen Yuan, 38 C. C. P. A. (Pat.) 967, 969-972, 188 F. 
2d 377, 379-380 (1951); Lyman v. Ladd, 120 U. S. App. D. C. 388, 389, 
347 F. 2d482, 483 (1965). 



196 OCTOBER TERM, 1980 

STEVENS, J., dissenting 450 U.S. 

could not be predicated upon a mental step. 7 Under the 
"function of a machine" doctrine, a process which amounted 
to nothing more than a description of the function of a ma- 
chine was unpatentable. This doctrine had its origin in sev- 
eral 19th-century decisions of this Court, 8 and it had been 
consistently followed thereafter by the lower federal courts. 9 



7 See, e. g, In re Cooper, 30 C. C. P. A. (Pat.) 946, 949, 134 F. 2d 630, 
632 (1943) ; Halliburton Oil Well Cementing Co. v. Walker, 146 F. 2d 817, 
821, 823 (CA9 1944), rev'd on other grounds, 329 U. S. 1 (1946); In re 
Heritage, 32 C. C. P. A. (Pat.) 1170, 1173-1177, 150 F. 2d 554, 556-558 
(1945) ; In re Abrams, 38 C C. P. A. (Pat.) 945, 950-953, 188 F. 2d 165, 
168-170 (1951); In re Shoo Wen Yuan, supra, at 975-976, 188 F. 2d, at 
383; In re Lundberg, 39 C. C. P. A. (Pat.) 971, 975, 197 F. 2d 336, 339 
(1952) ; In re Venner, 46 C. C. P. A. (Pat.) 754, 758-759, 262 F. 2d 91, 
95 (1958). 

8 The "function of a machine" doctrine is generally traced to Corning v. 
Burden, 15 How, 252, 268 (1854), in which the Court stated: "fl]t is 
well settled that a man cannot have a patent for the function or abstract 
effect of a machine, but only for the machine which produces it." The 
doctrine was subsequently reaffirmed on several occasions. See, e. g., 
Risdon Iron & Locomotive Works v. Medart, 158 U. S. 68, 78-79, 84 
(1895) ; Westinghouse v. Boyden Power Brake Co., 170 U. S. 537, 554-557 
(1898) ; Busch v. Jones, 184 U. S. 598, 607 (1902) ; Expanded Metal Co. v. 
Bradford, 214 U. S. 366, 383 (1909). 

'See, e. g., In re Weston, 17 App. D. C. 431, 436-442 (1901) ; Chisholm- 
Ryder Co. v. Buck, 65 F. 2d 735, 736 (CA4 1933); In re Ernst, 21 
C. C. P. A. (Pat.) 1235, 1238-1240, 71 F. 2d 169, 171-172 (1934); In re 
McCurdy, 22 C. C, P. A. (Pat.) 1140, 1142-1145, 76 F. 2d 400, 402-403, 
(1935) ; In re Parker, 23 C. C. P. A. (Pat.) 721, 722-725, 79 F. 2d 908, 
909-910 (1935) ; Black-Clawson Co. v. Centrifugal Engineering & Patent* 
Corp., 83 F. 2d 116, 119-120 (CA6), cert, denied, 299 U. S. 554 (1936); 
In re Wadmm, 25 C. C. P. A. (Pat.) 936, 943-944, 94 F. 2d 993, 998 
(1938) ; In re Mead, 29 C. C. P. A. (Pat.) 1001, 1004, 127 F. 2d 302, 304 
(1942) ; In re Solakian, 33 C, C. P. A. (Pat.) 1054, 1059, 155 F. 2d 404, 
407 (1946); In re Middleton, 35 C. C. P. A. (Pat.) 1166, 1167-1168, 167 
F. 2d 1012, 1013-1014 (1948); In re Nichols, 36 C. C. P. A. (Pat.) 759, 
762-763, 171 F. 2d 300, 302-503 (1948) ; In re A$hb*ugh, 36 C. C. P. A. 
(Pat.) 902, 904-905, 173 F. 2d 273, 274-275 (1949); In re Horvath, 41 
C. C. P. A. (Pat.) 844, 849-851, 211 F. 2d 604, 607-608 (1954) ; In re 
Gartner, 42 O. C. P. A. (Pat.) 1022, 1025-1026, 223 F. 2d 502, 504 (1955). 



DIAMOND v. DIEHR 197 

175 STEVENS, J., dissenting 

Finally, the definition of "process" announced by this Court 
in Cochrane v. Deener, 94 TJ. S. 780, 787-788 (1877), seemed 
to indicate that a patentable process must cause a physical 
transformation in the materials to which the process is ap- 
plied. See ante, at 182-184. 

Concern with the patent system's ability to deal with 
rapidly changing technology in the computer and other fields 
led to the formation in 1965 of the President's Commission 
on the Patent System. After studying the question of com- 
puter program patentability, the Commission recommended 
that computer programs be expressly excluded from the cov- 
erage of the patent laws; this recommendation was based 
primarily upon the Patent Office's inability to deal with the 
administrative burden of examining program applications. 10 
At approximately the time that the Commission issued its 
report, the Patent Office published notice of its intention to 
prescribe guidelines for the examination of applications for 
patents on computer programs. See 829 Off. Gaz. Pat. Off. 
865 (Aug. 16, 1966). Under the proposed guidelines, a com- 
puter program, whether claimed as an apparatus or as a proc- 
ess, was unpatentable, 11 The Patent Office indicated, how- 



10 The Commission's report contained the following evaluation of the 
current state of the law with respect to computer program patentability: 
"Uncertainty now exists as to whether the statute permits a valid patent 
to be granted on programs. Direct attempts to patent programs have 
been rejected on the ground of nonstatutory subject matter. Indirect 
attempts to obtain patents and avoid the rejection, by drafting claims as 
a process, or a machine or components thereof programmed in a given 
manner, rather than as a program itself, have confused the issue further 
and should not be permitted/' Report of the President's Commission on 
the Patent System, "To Promote the Progress of ... Useful Arts" in an 
Age of Exploding Technology 14 (1966). 

11 The Patent Office guidelines were based primarily upon the mental- 
steps doctrine and the Cochrane v. Deener, 94 U. S. 780 (1877), definition 
of "process/' See 829 Off . Gaz. Pat. Off. 865 (Aug. 16, 1966) ; 33 Fed. 
Reg. 15609 (1968). 



198 OCTOBER TERM, 1980 

STEVENS, J., dissenting 450 U.S. 

ever, that a programmed computer could be a component of 
a patentable process if combined with unobvious elements 
to produce a physical result. The Patent Office formally 
adopted the guidelines in 1968. See 33 Fed. Reg. 15609 
(1968). 

The new guidelines were to have a short life. Begin- 
ning with two decisions in 1968, a dramatic change in the 
law as understood by the Court of Customs and Patent Ap- 
peals took place. By repudiating the well-settled "f unction 
of a machine" and "mental steps" doctrines, that court re- 
interpreted 101 of the Patent Code to enlarge drastically 
the categories of patentable subject matter. This reinter- 
pretation would lead to the conclusion that computer pro- 
grams were within the categories of inventions to which Con- 
gress intended to extend patent protection. 

In In re Tarczy-Hornoch, 55 C. C. P. A. (Pat.) 1441, 397 
F. 2d 856 (1968), a divided Court of Customs and Patent 
Appeals overruled the line of cases developing and applying 
the "function of a machine" doctrine. The majority ac- 
knowledged that the doctrine had originated with decisions 
of this Court and that the lower federal courts, including the 
Court of Customs and Patent Appeals, had consistently ad- 
hered to it during the preceding 70 years. Nonetheless, the 
court concluded that the doctrine rested on a misinterpreta- 
tion of the precedents and that it was contrary to "the basic 
purposes of the patent system and productive of a range of 
undesirable results from the harshly inequitable to the silly." 
Id., at 1454, 397 F. 2d, at 867," Shortly thereafter, a similar 

12 Judge Kirkpatrick, joined by Chief Judge Worley, wrote a vigorous 
dissent objecting to the majority's decision to abandon "a rule which is 
about as solidly established as any rule of the patent law." 66 C. C. P. A. 
(Pat.), at 1467, 397 P. 2d, at 868. Unlike the majority, the dissenting 
judges did not consider the doctrine inequitable or silly, and they observed 
that it had functioned in a satisfactory manner in the past. Id., at 1467- 
1468, 397 F. 2d, at 869. In addition, they considered the doctrine to be 
so well established that it had been adopted by implication in the Patent 
Act of 1962. Id., at 1468, 397 F, 2d, at 869. 



DIAMOND v. DIEHR 199 

175 STEVENS, J., dissenting 

fate befell the "mental steps" doctrine. In In re Prater, 56 
C. C. P. A. (Pat.) 1360, 415 F. 2d 1378 (1968), modified on 
rehearing, 56 C. C. A. P. (Pat.) 1381, 415 F. 2d 1393 (1969), 
the court found that the precedents on which that doctrine 
was based either were poorly reasoned or had been misinter- 
preted over the years. 56 C. C. P. A. (Pat.)-, at 1366-1372, 
415 F. 2d, at 1382-1387. The court concluded that the fact 
that a process may be performed mentally should not fore- 
close patentability if the claims reveal that the process also 
may be performed without mental operations. Id., at 1374- 
1375, 415 F. 2d, at 1389. 13 This aspect of the original Prater 
opinion was substantially undisturbed by the opinion issued 
after rehearing. However, the second Prater opinion clearly 
indicated that patent claims broad enough to encompass the 
operation of a programmed computer would not be rejected 
for lack of paten table subject matter. 56 C. C. P. A. (Pat.), 
at 1394, n. 29, 415 F. 2d, at 1403, n. 29." 

18 In Prater, the patent application claimed an improved method for 
processing spectrographic data. The method analyzed conventionally ob- 
tained data by using well-known equations. The inventors had discovered 
a particular mathematical characteristic of the equations which enabled 
them to select the specific subset of equations that would yield optimum 
results. The application disclosed an analog computer as the preferred 
embodiment of the invention, but indicated that a programmed digital 
computer could also be used. 56 C. C. P. A. (Pat.), at 1361-1363, 415 
F. 2d, at 1379-1380. The Patent Office had rejected the process claims on 
a mental-steps theory because the only novel aspect of the claimed method 
was the discovery of an unpatentable mathematical principle. The appa- 
ratus claim was rejected essentially because, when the mathematical prin- 
ciple was assumed to be within the prior art, the claim disclosed no inven- 
tion entitled to patent protection. Id., at 1364-1365, 1375, 415 F. 2d, at 
1381, 1399. 

14 It is interesting to note that the Court of Customs and Patent Appeals 
in the second Prater opinion expressly rejected the Patent Office's pro- 
cedure for analyzing the apparatus claim pursuant to which the mathe- 
matical principle was treated as though it were within the prior art. 56 
C. C. P. A. (Pat.), at 1397, 415 F. 2d, at 1405-1406. This precise pro- 
cedure, of course, was later employed by this Court in Parker v. Flook, 
437 U. S. 584 (1978). 



200 UUJLXJJB.&JK, 

STEVENS, J., dissenting 450 U.S. 

The Court of Customs and Patent Appeals soon replaced 
the overruled doctrines with more expansive principles for- 
mulated with computer technology in mind. In In re Bern- 
hart, 57 C. C. P. A. (Pat.) 737, 417 R 2d 1395 (1969), the 
court reaffirmed Prater, and indicated that all that remained 
of the mental-steps doctrine was a prohibition on the grant- 
ing of a patent that would confer a monopoly on all uses of a 
scientific principle or mathematical equation* Id., at 743, 417 
P. 2d ; at 1399. The court also announced that a computer 
programmed with a new and unobvious program was physi- 
cally different from the same computer without that program; 
the programmed computer was a new machine or at least a 
new improvement over the unprogrammed computer. Id., 
at 744, 417 F. 2d, at 1400. Therefore, patent protection could 
be obtained for new computer programs if the patent claims 
were drafted in apparatus form. 

The Court of Customs and Patent Appeals turned its at- 
tention to process claims encompassing computer programs 
in In re Musgrave, 57 C. C. P. A. (Pat.) 1352, 431 F. 2d 882 
(1970). In that case, the court emphasized the fact that 
Prater had done away with the mental-steps doctrine ; in par- 
ticular, the court rejected the Patent Office's continued reli- 
ance upon the "point of novelty" approach to claim analysis. 
Id., at 1362, 431 P. 2d, at 889. 10 The court also announced a 
new standard for evaluating process claims under 101 : any 
sequence of operational steps was a patentable process under 
101 as long as it was within the "technological arts/' Id., 
at 1366-1367, 431 F. 2d, at 893. This standard effectively 
disposed of any vestiges of the mental-steps doctrine remain- 

15 Under the "point of novelty 1 ' approach, if the novelty or advance- 
ment in the art claimed by the inventor resided solely in a step of the 
process embodying a mental operation or other unpetentable element, the 
claim was rejected under 101 as being directed to nonstatutory subject 
matter. See Blnmenthal & Riter, Statutory or Non-Statutory?: An 
Analysis of the Patentability of Computer Related Inventions, 62 J. Pat. 
Off. Soc. 454, 457, 461, 470 (1980)* 



DIAMOND v. DIEHR 201 

175 STEVENS, J., dissenting 

ing after Prater and Bernhart. The "technological arts" 
standard was refined in In re Benson, 58 C. C. P. A. (Pat.) 
1134, 441 P. 2d 682 (1971), in which the court held that com- 
puters, regardless of the uses to which they are put, are within 
the technological arts for purposes of 101. Id., at 1142, 441 
F. 2d, at 688. 

In re Benson, of course, was reversed by this Court in 
Gottschalk v. Benson, 409 U. S. 63 (1972). 17 Justice Doug- 
las' opinion for a unanimous Court made no reference to the 
lower court's rejection of the mental-steps doctrine or to the 
new technological-arts standard. 1 * Rather, the Court clearly 
held that new mathematical procedures that can be con- 
ducted in old computers, like mental processes and abstract 
intellectual concepts, see id., at 67, are not patentable proc- 
esses within the meaning of 101. 

16 The author of the second Prater opinion, Judge Baldwin, disagreed 
with the Musgrave "technological arts" standard for process claims. He 
described that standard as "a major and radical shift in this area of the 
law/' 57 C. C. P. A. (Pat.), at 1367, 431 F. 2d, at 893-894. As Judge 
Baldwin read the majority opinion, claims drawn solely to purely mental 
processes were now entitled to patent protection. 7dL, at 1369, 431 F. 2d, 
at 895-896. Judge Baldwin's understanding of Musgrave seems to have 
been confirmed in In re Foster, 58 C. C. P. A. (Pat.) 1001, 1004-1005, 438 
F. 2d 1011, 1014-1015 (1971). 

17 In the interval between the two Benson decisions, the Court of Cus- 
toms and Patent Appeals decided several cases in which, it addressed the 
patentability of computer-related inventions. In In re Mcllroy, 58 
C. C. P, A. (Pat.) 1249, 442 F. 2d 1397 (1971), and In re Waldbaum, 59 
C. C. P. A. (Pat.) 940, 457 F. 2d 997 (1972), the court relied primarily 
upon Musgrave and Benson. In In re Ohiron, 58 C. C. P. A. (Pat.) 1207, 
442 F. 2d 985 (1971), the court reaffirmed Tarczy-Hornoch'a rejection of 
the "function of a machine" doctrine. 

18 Although the Court did not discuss the mental-steps doctrine in 
Benson, some commentators have suggested that the Court implicitly relied 
upon the doctrine in that case. See, e. g., Davis, supra n. 2, at 14, and 
n. 92. Other commentators have observed that the Court's analysis in 
Benson was entirely consistent with the mental-steps doctrine. See, e. g., 
Comment, Computer Program Classification: A Limitation on Program 
Patentability as a Process, 53 Or. L. Bev. 501, 517-518, n. 132 (1974). 



202 OCTOBER TERM, 1980 

STEVENS, J., dissenting 450 U. S. 

The Court of Customs and Patent Appeals had its first 
opportunity to interpret Benson in In re Christensen, 478 
F. 2d 1392 (1973). In Christensen, the claimed invention 
was a method in which the only novel element was a mathe- 
matical formula. The court resurrected the point-of-novelty 
approach abandoned in Musgrave and held that a process 
claim in which the point of novelty was a mathematical equa- 
tion to be solved as the final step of the process did not de- 
fine paten table subject matter after Benson, 478 F. 2d, at 
1394. Accordingly, the court affirmed the Patent Office 
Board of Appeals 7 rejection of the claims under 101. 

The Court of Customs and Patent Appeals in subsequent 
cases began to narrow its interpretation of Benson. In In re 
Johnston, 502 F. 2d 765 (1974), the court held that a record- 
keeping machine system which comprised a programmed dig- 
ital computer was patentable subject matter under 101. 
Id. f at 771. The majority dismissed Benson with the obser- 
vation that Benson involved only process, not apparatus, 
claims. 502 F. 2d, at 771. Judge Rich dissented, arguing 
that to limit Benson only to process claims would make pat- 
entability turn upon the form in which a program invention 
was claimed. 502 F. 2d, at 773-774. 10 The court again con- 
strued Benson as limited only to process claims in In re Noll, 
545 F. 2d 141 (1976), cert, denied, 434 U. S. 875 (1977); 
apparatus claims were governed by the court's pre-Benson 
conclusion that a programmed computer was structurally dif- 
ferent from the same computer without that particular pro- 
gram. 545 F. 2d, at 148. In dissent, Judge Lane, joined by 
Judge Rich, argued that Benson should be read as a general 
proscription of the patenting of computer programs regard- 
less of the form of the claims. 545 F. 2d, at 151-152, Judge 
Lane's interpretation of Benson was rejected by the majority 

19 The decision of the Court of Customs and Patent Appeals was re- 
versed by this Court on other grounds in Dann v. Johnston, 425 17. S. 
219 (1976). 



DIAMOND v. DIEHR 203 

175 STEVENS, J., dissenting 

in In re Chatfield, 545 F. 2d 152 (1976), cert, denied, 434 
U. S. 875 (1977), decided on the same day as Noll. In that 
case, the court construed Benson to preclude the patenting 
of program inventions claimed as processes only where the 
claims would pre-empt all uses of an algorithm or mathe- 
matical formula. 545 F. 2d, at 156, 158-159. 20 The dissent- 
ing judges argued, as they had in Noll, that Benson held that 
programs for general-purpose digital computers are not pat- 
entable subject matter. 545 K 2d, at 161. 

Following Noll and Chatfield, the Court of Customs and 
Patent Appeals consistently interpreted Benson to preclude 
the patenting of a program-related process invention only 
when the claims, if allowed, would wholly pre-empt the 
algorithm itself. One of the cases adopting this view was 
In re Flook, 559 F. 2d 21 (1977), 21 which was reversed in 
Parker v. Flook, 437 U. S. 584 (1978). Before this Court 
decided Flook, however, the lower court developed a two-step 
procedure for analyzing program-related inventions in light 
of Benson. In In re Freeman, 573 F. 2d 1237 (1978), the 
court held that such inventions must first be examined to de- 
termine whether a mathematical algorithm is directly or in- 
directly claimed; if an algorithm is recited, the court must 
then determine whether the claim would wholly pre-empt 
that algorithm. Only if a claim satisfied both inquiries was 
Benson considered applicable. 573 F. 2d, at 1245. See also 
In re Toma, 575 F. 2d 872, 877 (CCPA 1978), 

20 In addition to interpreting Benson, the majority also maintained that 
Christensen, despite its point-of-novdty language, had not signalled a 
return to that form of claim analysis. 545 P. 2d, at 158. The court 
would reaffirm this proposition consistently thereafter. See, e. g., In re de 
Castelet, 562 P. 2d 1236, 1240 (1977) ; In re Richman, 563 F. 2d 1026, 
1029-1030 (1977); In re Freeman, 573 F. 2d 1237, 1243-1244 (1978); 
In re Toma, 575 P. 2d 872, 876 (1978); In re Walter, 618 F. 2d 758, 
766-767 (1980). 

21 See also In re Deutsch, 553 F. 2d 689, 692-693 (CCPA 1977) ; In re 
Waldbaum, 559 P. 2d 611, 616-617 (CCPA 1977); In re de Castelet, 
supra, at 1243-1245. 



204 OCTOBER TERM, 1980 

STEVENS, J., dissenting 450 U.S. 

In Flock, this Court clarified Benson in three significant 
respects. First, Flook held that the Benson rule of unpat- 
entable subject matter was not limited, as the lower court 
believed, to claims which wholly pre-empted an algorithm or 
amounted to a patent on the algorithm itself, 437 U. S., at 
589-590. Second, the Court made it clear that an improved 
method of calculation, even when employed as part of a 
physical process, is not patentable subject matter under 
101. Id. t at 595, n. 18. Finally, the Court explained the 
correct procedure for analyzing a patent claim employing a 
mathematical algorithm. Under this procedure, the algo- 
rithm is treated for 101 purposes as though it were a famil- 
iar part of the prior art ; the claim is then examined to deter- 
mine whether it discloses "some other inventive concept." 
Id., at 591-595. 22 

Although the Court of Customs and Patent Appeals in 
several po&^Flook decisions held that program-related in- 
ventions were not patentable subject matter under 101, see, 
e. g., In re Sarkar, 588 F. 2d 1330 (1978) ; In re Gelnovatch, 
595 F. 2d 32 (1979), in general Flook was not enthusiastically 
received by that court. In In re Bergy, 596 F. 2d 952 (1979), 
the majority engaged in an extensive critique of Flook, con- 
cluding that this Court had erroneously commingled "distinct 
statutory provisions which are conceptually unrelated- " 596 
F. 2d, at 959. 23 In subsequent cases, the court construed 

22 This form of daim analysis did not originate with Flook. Rather, 
the Court derived it from the landmark decision of O'Reilly v- Morse, 15 
How. 62, 115 (1854). In addition, this analysis is functionally the same 
as the point-of-novelty analysis used in conjunction with the mental-steps 
doctrine. In fact, the Patent Office in the past occasionally phrased its 
mental-steps rejections in essentially the terms later employed in Flook. 
See nn. 13-15, mpra. See generally Comment, 35 XL S, C. 101 Claim 
Analysis The Point of Novelty Approach, 62 J. Pat. Off. Soc. 521 (1980). 

28 The Court of Customs and Patent Appeals suggested that the cause 
of this Court's error was the argument presented by the Solicitor General 
in Flook. According to the majority, the Solicitor General's briefs "badly, 
and with a seeming sense of purpose" confused the statutory requirements. 



DIAMOND v. DIEHR 205 

175 STEVENS, J., dissenting 

Flook as resting on nothing more than the way in which the 
patent claims had been drafted, and it expressly declined to 
use the method of claim analysis spelled out in that decision. 
The Court of Customs and Patent Appeals has taken the 
position that, if an application is drafted in a way that dis- 
closes an entire process as novel, it defines patentable subject 
matter even if the only novel element that the inventor claims 
to have discovered is a new computer program. 2 * The court 
interpreted Flook in this manner in its opinion in this case. 
See In re Diehr, 602 F. 2d 982, 986-989 (1979). In my judg- 
ment, this reading of Flook although entirely consistent 
with the lower court's expansive approach to 101 during the 
past 12 years trivializes the holding in Flook, the principle 
that underlies Benson, and the settled line of authority re- 
viewed in those opinions. 

II 

As I stated at the outset, the starting point in the proper 
adjudication of patent litigation is an understanding of what 
the inventor claims to have discovered. Indeed, the outcome 
of such litigation is often determined by the judge's under- 
standing of the patent application. This is such a case. 

In the first sentence of its opinion, the Court states the 
question presented as "whether a process for curing synthetic 
rubber ... is patentable subject matter." Ante, at 177. Of 
course, that question was effectively answered many years 
ago when Charles Goodyear obtained his patent on the vul- 
canization process. 25 The patent application filed by Diehr 



596 F. 2d, at 962. The court went on to describe part of the Solicitor 
General's argument in Flook as "subversive nonsense." 596 F 2d, at 963. 

24 See, e. g., In re Johnson, 589 F. 2d 1070 (1978) ; In re Phillips, 608 
F. 2d 879 (1979); In re Sherwood, 613 F. 2d 809 (1980), cert, pending, 
No, 79-1941. 

25 In an opinion written over a century ago, the Court noted: 

"A manufacturing process is clearly an art, within the meaning of the law, 
Goodyear's patent was for a process, namely, the process of vulcanizing 



206 OCTOBER TERM, 1980 

STEVENS, J., dissenting 450 II. S. 

and Lutton, however, teaches nothing about the chemistry 
of the synthetic rubber-curing process, nothing about the raw 
materials to be used in curing synthetic rubber, nothing 
about the equipment to be used in the process, and nothing 
about the significance or effect of any process variable such 
as temperature, curing time, particular compositions of mate- 
rial, or mold configurations. In short, Diehr and Lutton do 
not claim to have discovered anything new about the process 
for curing synthetic rubber. 

As the Court reads the claims in the Diehr and Lutton 
patent application, the inventors' discovery is a method of 
constantly measuring the actual temperature inside a rubber 
molding press. 28 As I read the claims, their discovery is an 



india-rubber by subjecting it to a high degree of heat when mixed with 
sulphur and a mineral salt. 

"The mixing of certain substances together, or the heating of a substance 
to a certain temperature, is a process." Tilghman v. Proctor, 102 U. S. 
707, 722, 728 (1881). 

See also Corning v. Burden, 15 How. 252, 267 (1854). Modern rubber 
curing methods apparently still are based in substantial part upon the 
concept discovered by Goodyear: 

"Since the day 120 years ago when Goodyear first heated a mixture of 
rubber and sulphur on a domestic stove and so discovered vulcanisation, 
this action of heat and sulphur has remained the standard method of 
converting crude rubber, with all its limitations, into a commercially 
usable product, giving it the qualities of resistance to heat and cold in 
addition to considerable mechanical strength. 

"Goodyear also conjured up the word 'cure' for vulcanisation, and this 
has become the recognised term in production circles." Mernagh, Prac- 
tical Vulcanisation, in The Applied Science of Rubber 1053 (W. Naunton 
ed. 1961). 

See generally Ktamich, Making Rubber Products for Engineering Uses, 
in Engineering Uses of Rubber 18, 28-34 (A. McPherson & A. Klemin eds. 
1956) 

2S "Respondents characterize their contribution to the art to reside in 
the process of constantly measuring the actual temperature inside the 
mold/' See ante, at 178, 



DIAMOND v. DIEHR 207 

175 STEVENS, J., dissenting 

improved method of calculating the time that the mold 
should remain closed during the curing process. 27 If the 
Court's reading of the claims were correct, I would agree that 
they disclose patentable subject matter. On the other hand, 
if the Court accepted my reading, I feel confident that the 
case would be decided differently. 

There are three reasons why I cannot accept the Court's 
conclusion that Diehr and Lutton claim to have discovered 
a new method of constantly measuring the temperature in- 
side a mold. First, there is not a word in the patent applica- 
tion that suggests that there is anything unusual about the 
temperature-reading devices used in this process or indeed 
that any particular species of temperature-reading device 
should be used in it. 28 Second, since devices for constantly 

27 Claim 1 is quoted in full in n. 5 of the Court's opinion, ante, at 179. 
It describes a "method of operating a rubber-molding press for precision 
molded compounds with the aid of a digital computer." As the Court of 
Customs and Patent Appeals noted, the improvement claimed in the appli- 
cation consists of "opening the mold at precisely the correct time rather 
than at a time which has been determined by approximation or guesswork." 
In re Diehr, 602 P. 2d 982, 988 (1979). 

28 In the portion of the patent application entitled "Abstract of the 
Disclosure/' the following reference to monitoring the temperature is 
found: 

"An interval timer starts running from the time of mold closure, and the 
temperature within the mold cavity is measured often, typically every ten 
seconds. The temperature is fed to a computer . , . ." App. to Pet. for 
Cert. 38a. 

In the portion of the application entitled "Background of the Invention," 
the following statement is found: 

"By accurate and constant calculation and recalculation of the correct 
mold time under the temperatures actually present in the mold, the ma- 
terial can be cured accurately and can be relied upon to produce very 
few rejections, perhaps completely eliminating all rejections due to faulty 
mold cure." Id., at 41a. 

And, in the "Summary of the Invention," this statement appears: 
"A surveillance system is maintained over the mold to determine the 
actual mold temperature substantially continuously, for example, every 



208 OCTOBER TERM, 1980 

STEVENS, J., dissenting 450 U.S. 

measuring actual temperatures on a back porch, for exam- 
ple have been familiar articles for quite some time, I find 
it difficult to believe that a patent application filed in 1975 
was premised on the notion that a "process of constantly 
measuring the actual temperature" had just been discovered. 
Finally, the Patent and Trademark Office Board of Appeals 
expressly found that "the only difference between the con- 
ventional methods of operating a molding press and that 
claimed in [the] application rests in those steps of the claims 
which relate to the calculation incident to the solution of the 
mathematical problem or formula used to control the mold 
heater and the automatic opening of the press." 29 This 
finding was not disturbed by the Court of Customs and Pat- 
ent Appeals and is clearly correct. 

A fair reading of the entire patent application, as well as 
the specific claims, makes it perfectly clear that what Diehr 
and Lutton claim to have discovered is a method of using a 
digital computer to determine the amount of time that a rub- 
ber molding press should remain closed during the synthetic 
rubber-curing process. There is no suggestion that there is 
anything novel in the instrumentation of the mold, in actuat- 
ing a timer when the press is closed, or in automatically open- 
ing the press when the computed time expires. 30 Nor does the 

ten seconds, and to feed that information to the computer along with the 
pertinent stored data and along with the elapsed time information/' Ibid. 
Finally, in a description of a simple hypothetical application using the in- 
vention described in Claim 1, this is the reference to the temperature- 
reading device: 

'Thermocouples, or other temperature-detecting devices, located directly 
within the mold cavity may read the temperature at the surface where 
the molding compound touches the mold, so that it actually gets the tem- 
perature of the material at that surface/' Id., at 45a, 

**Id., at 24a. 

80 These elements of the rubber-curing process apparently have been 
well known for years. The following description of the vulcanization 
process appears in a text published in 1961 : 

"Vulcanisation is too important an operation to be left to human control, 
however experienced and conscientious. Instrumentation makes controlled 



DIAMOND v. DIEHR 209 

175 STEVENS, J., dissenting 

application suggest that Diehr and Lutton have discovered 
anything about the temperatures in the mold or the amount 
of curing time that will produce the best cure. What they 
claim to have discovered, in essence, is a method of updating 
the original estimated curing time by repetitively recalculat- 
ing that time pursuant to a well-known mathematical for- 
mula in response to variations in temperature within the 
mold. Their method of updating the curing time calculation 
is strikingly reminiscent of the method of updating alarm 
limits that Dale Flook sought to patent. 

Parker v. Flook, 437 TJ. S. 584 (1978), involved the use of 
a digital computer in connection with a catalytic conversion 
process. During the conversion process, variables such as 
temperature, pressure, and flow rates were constantly moni- 
tored and fed into the computer; in this case, temperature in 
the mold is the variable that is monitored and fed into the 
computer. In Flook, the digital computer repetitively re- 
calculated the "alarm limit" a number that might signal 
the need to terminate or modify the catalytic conversion 
process; in this case, the digital computer repetitively recal- 
culates the correct curing time a number that signals the 
time when the synthetic rubber molding press should open. 

The essence of the claimed discovery in both cases was an 
algorithm that could be programmed on a digital computer. 81 



cure possible, and in consequence instrument engineering is a highly impor- 
tant function in the modern rubber factory, skilled attention being neces- 
sary, not only in the maintenance of the instruments but also in their 
siting. There are instruments available which will indicate, record or con- 
trol all the services involved in vulcanisation, including time, temperature 
and pressure, and are capable of setting in motion such operations as the 
opening and closing of moulds and, in general, will control any process 
variable which is capable of being converted into an electric charge or 
pneumatic or hydraulic pressure impulse." Mernagh, supra n. 25, at 
1091-1092. 

31 Commentators critical of the Flook decision have noted the essential 
similarity of the two inventions : 
"The Diehr invention improved the control system by continually re- 



210 OCTOBER TERM, 1980 

STEVENS, J,, dissenting 450 U. S. 

In Flook, the algorithm made use of multiple process varia- 
bles; in this case, it makes use of only one. In Flook, the 
algorithm was expressed in a newly developed mathematical 
formula; in this case, the algorithm makes use of a well- 
known mathematical formula. Manifestly, neither of these 
differences can explain today's holding/ 2 What I believe 



measuring the temperature and recalculating the proper cure time. The 
computer would simultaneously keep track of the elapsed time. When 
the elapsed time equalled the proper cure time, the rubber would be re- 
leased automatically from the mold. 

"The facts are difficult to distinguish from those in Flook. Both proc- 
esses involved (1) an initial calculation, (2) continual remeasurement and 
recalculation, and (3) some control use of the value obtained from the 
calculation." Novick & Wallenstein, supra n. 5, at 326 (footnotes 
omitted). 

32 Indeed, the most significant distinction between the invention at issue 
in Flook and that at issue in this case lies not in the characteristics of 
the inventions themselves, but rather in the drafting of the claims. After 
noting that "[t"]he Diehr claims are reminiscent of the claims in Flook" 
Blumenthal & Riter, supra n. 15, at 502-503 (footnote omitted) , the 
authors of a recent article on the subject observe that the Court of 
Customs and Patent Appeals' analysis in this case "lends itself to an 
interesting exercise in claim drafting/' Id., at 505* To illustrate their 
point, the authors redrafted the Diehr and Lutton claims into the format 
employed in the Flook application: 

"An improved method of calculating the cure time of a rubber molding 
process utilizing a digital computer comprising the steps of: 

"a. inputting into said computer input values including 

"1. natural logarithm conversion data ([l]n), 

"2. an activation energy constant (C) unique to each batch of rubber 
being molded, 

"3 a constant (X) dependent upon the geometry of the particular mold 
of the press, and 

"4, continuous temperature values (Z) of the mold during molding; 

"b. operating said computer for 

"1. counting the elapsed cure time, 

"2. calculating the cure time from the input values using the Arrhenius 
equation [l]n V=CZ+X, where V is the total cure time, and 



DIAMOND v. DIEHR 211 

175 STEVENS, J., dissenting 

does explain today's holding is a misunderstanding of the 
applicants' claimed invention and a failure to recognize the 
critical difference between the "discovery" requirement in 
101 and the "novelty" requirement in 102. 33 

Ill 

The Court misapplies Parker v. Flo ok because, like the 
Court of Customs and Patent Appeals, it fails to understand 
or completely disregards the distinction between the subject 
matter of what the inventor claims to have discovered the 
101 issue and the question whether that claimed discovery 
is in fact novel the 102 issue. 84 If there is not even a 



"c. providing output signals from said computer when said calculated 
cure time is equal to said elapsed cure time." Ibid. 

The authors correctly conclude that even the lower court probably would 
have found that this claim was drawn to unpatentable subject matter 
under 101. Id., at 505-506. 

33 In addition to confusing the requirements of 101 and 102, the Court 
also misapprehends the record in this case when it suggests that the Diebr 
and Lutton patent application may later be challenged for failure to 
satisfy the requirements of 102 and 103. See ante, at 191. This sug- 
gestion disregards the fact that the applicants overcame all objections to 
issuance of the patent except the objection predicated on 101. The 
Court seems to assume that 102 and 103 issues of novelty and ob- 
viousness remain open on remand. As I understand the record, however, 
those issues have already been resolved. See Brief for Respondents 11-14; 
Reply Memorandum for Petitioner 3-4, and n. 4. Therefore, the Court is 
now deciding that the patent will issue. 

34 The early cases that the Court of Customs and Patent Appeals re- 
fused to follow in Prater, Musgrave, and Benson had recognized the dis- 
tinction between the 101 requirement that what the applicant claims to 
have invented must be patentable subject matter and the 102 require- 
ment that the invention must actually be novel. See, e. g., In re Shao Wen 
Yuan, 38 C. C. P. A. (Pat.), at 973-976, 188 F. 2d, at 382-383; In re 
Abrams, 38 C. C. P. A. (Pat.), at 951-952, 188 F. 2d, at 169; In re 
Heritage, 32 C. C. P. A. (Pat.), at 1173-1174, 1176-1177, 150 F. 2d, at 
556, 558; Halliburton Oil Well Cementing Co. v. Walker, 146 F. 2d, at 
821, 823. The lower court's error in this case, and its unenthusiastic re- 
ception of Gottschalk v. Benson and Parker v. Flook, is, of course, con- 



212 OCTOBER TERM, 1980 

STEVENS, J., dissenting 450 U. 8. 

claim that anything constituting paten table subject matter 
has been discovered, there is no occasion to address the 
novelty issue. 35 Or, as was true in Flook, if the only concept 
that the inventor claims to have discovered is not patentable 
subject matter, 101 requires that the application be rejected 
without reaching any issue under 102; for it is irrelevant 
that unpatentable subject matter in that case a formula for 
updating alarm limits may in fact be novel. 

Proper analysis, therefore, must start with an understand- 
ing of what the inventor claims to have discovered or 
phrased somewhat differently what he considers his inven- 
tive concept to be. 36 It seems clear to me that Diehr and 



sistent with its expansive reading of 101 in Tarczy-Hornoch, Prater, and 
their progeny. 

35 The Court's opinion in Flook itself pointed out this distinction: 
"The obligation to determine what type of discovery is sought to be 
patented must precede the determination of whether that discovery is, in 
fact, new or obvious," 437 U. S., at 593. 

As the Court of Customs and Patent Appeals noted in this case, "for the 
claim to be statutory, there must be some substance to it other than the 
recitation and solution of the equation or formula." 602 F. 2d, at $88. 
See Comment, 62 J. Pat. Off. Soe., supra n. 22, at 522-523. 

80 The Court fails to focus upon what Diehr and Lutton claim to have 
discovered apparently because it believ<*s that this method of analysis 
would improperly import novelty considerations into 101. See ante, 
at 188-191, 193, n. 15. Rather than directing its attention to the applicants' 
claimed discovery, the Court instead focuses upon the general industrial 
context in which the applicants intend their discovery to be used. Implicit 
in this interpretation of the patent application is the assumption that, as 
long as the claims describe a specific implication of the applicants' dis- 
covery, patentable subject matter is defined. This assumption was ex- 
pressly rejected in Flook: 

"This assumption is based on respondent's narrow reading of Ben*on f 
and is as untenable in the context of 101 as it is in the context of that 
case. It would make the determination of patentable subject matter 
depend simply on the draftsman's art and would ill serve the principles 
underlying the prohibition against patenta for 'ideas' or phenomena of 
nature. The rule that the discovery of a law of nature cannot be pat- 



DIAMOND v. DIEHR 213 

175 STEVENS, J., dissenting 

Lutton claim to have developed a new method of program- 
ming a digital computer in order to calculate promptly and 
repeatedly the correct curing time in a familiar process. 37 
In the 101 analysis, we must assume that the sequence of 
steps in this programming method is novel, unobvious, and 
useful. The threshold question of whether such a method is 
patentable subject matter remains. 

If that method is regarded as an "algorithm" as that term 
was used in Gottschalk v. Benson, 409 U. S. 63 (1972), and in 



ented rests, not on the notion that natural phenomena are not processes, 
but rather on the more fundamental understanding that they are not the 
kind of 'discoveries' that the statute was enacted to protect." 437 U. S., 
at 593 (footnote omitted) . 

37 A few excerpts from the original patent application will emphasize 
this point: 

"The invention will probably best be understood by first describing a 
simple example, in which a single mold is involved and in which the infor- 
mation is relatively static. 

"A standard digital computer may be employed in this method. It has 
a data storage bank of suitable size which, of course, may vary when 
many molds are used and when more refinements are employed. How- 
ever, Fig. 1 shows a relatively simple case which achieves results that are 
vast improvements over what has been done up to now. . . . 

"The data bank of the computer is provided with a digital input into 
which the time-temperature cure data for the compound involved is fed, 
as shown in Fig. 1. All the data is available to the computer upon call, 
by random access, and the call can be automatic depending upon the 
temperature actually involved. In other words, the computer over and 
over questions the data storage, asking, what is the proper time of cure 
for the following summation of temperatures? The question may be 
asked each second, and the answer is readily provided. 



"Recalculation continues until the time that has elapsed since mold closure 
corresponds with the calculated time. Then, the computer actuates the 
mold-opening device and the mold is automatically opened." App. to 
Pet. for Cert. 43a-45a. 

[Footnote 87 is continued on p. 



214 



OUTUJBJkK TJiKM, 

STEVENS, J., dissenting 



460 U.S. 



Parker v. Flook, 437 U. S. 584 (1978), 88 and if no other inven- 
tive concept is disclosed in the patent application, the ques- 
tion must be answered in the negative. In both Benson and 
Flook, the parties apparently agreed that the inventor's dis- 
covery was properly regarded as an algorithm; the holding 
that an algorithm was a "law of nature" that could not be 



The Pigure 1 referred to in the application is as follows: 



Arrhemus Reaction 
Constants for 
Compound 


^ 





Actual Mold 
Temperature 
Every 10 Seconds 



Compares Calculated Cure 
Time with Elapsed Cure 
Time Every Second 


> 





Data Storage] + \ Computer |, 



Input Signal to Start f 



Actuates Mold Opening 
When Calculated Cure 
Time Equals Elapsed 
Cure Time 



Interim Timing in Computer 




Controls Mold Platen 
Temperature with 
Proportional Control 
Algorithm 



Id., at 

88 In Benson, we explained the term "algorithm" in the following 
paragraph: 

"The patent sought is on a method of programming a general-purpose 
digital computer to convert signals from binary-coded decimal form into 
pure binary form. A procedure for solving a given type of mathematical 
problem is known as an 'algorithm/ The procedures set forth in the 
present claims are of that kind; that is to say, they are a generalized 
formulation for programs to solve mathematical problems of converting 
one form of numerical representation to another. From the generic for- 
mulation, programs may be developed as specific applications/' 409 
U. 8., at 65. 



DIAMOND v. DIEHR 215 

175 STEVENS, J., dissenting 

patented therefore determined that those discoveries were not 
patentable processes within the meaning of 101. 

As the Court recognizes today, Flook also rejected the 
argument that patent protection was available if the inven- 
tor did not claim a monopoly on every conceivable use of the 
algorithm but instead limited his claims by describing a spe- 
cific postsolution activity in that case setting off an alarm 
in a catalytic conversion process. In its effort to distinguish 
Flook from the instant case, the Court characterizes that 
postsolution activity as "insignificant," ante, at 191, or as 
merely "token" activity, ante, at 192, n. 14. As a practical 
matter, however, the postsolution activity described in the 
Flook application was no less significant than the automatic 
opening of the curing mold involved in this case. For setting 
off an alarm limit at the appropriate time is surely as impor- 
tant to the safe and efficient operation of a catalytic conversion 
process as is actuating the mold-opening device in a synthetic 
rubber-curing process. In both cases, the post-solution ac- 
tivity is a significant part of the industrial process. But in 
neither case should that activity have any legal significance 
because it does not constitute a part of the inventive concept 
that the applicants claimed to have discovered. 89 

In Gottschalk v. Benson, we held that a program for the 

39 In Flook, the Court's analysis of the postsolution activity recited in 
the patent application turned, not on the relative significance of that 
activity in the catalytic conversion process, but rather on the fact that 
that activity was not a part of the applicant's discovery: 

"The notion that post-solution activity, no matter how conventional 
or obvious in itself, can transform an unpatentable principle into a 
patentable process exalts form over substance. A competent draftsman 
could attach some form of post-solution activity to almost any mathe- 
matical formula; the Pythagorean theorem would not have been patenta- 
ble, or partially patentable, because a patent application contained a final 
step indicating that the formula, when solved, could be usefully applied to 
existing surveying techniques. The concept of patentable subject matter 
under 101 is not 'like a nose of wax which may be turned and twisted 
in any direction . . . .* White v. Dunbar, 119 TL 8. 47, 51." 437 TL S., 
at 590 (footnote omitted). 



STEVENS, J., dissenting 450 U.S. 

solution by a digital computer of a mathematical problem 
was not a patentable process within the meaning of 101. 
In Parker v. Flook, we further held that such a computer 
program could not be transformed into a patentable process 
by the addition of postsolution activity that was not claimed 
to be novel. That holding plainly requires the rejection of 
Claims 1 and 2 of the Diehr and Lutton application quoted 
in the Court's opinion. Ante, at 179-180, n. 5. In my 
opinion, it equally requires rejection of Claim 11 because the 
presolution activity described in that claim is admittedly a 
familiar part of the prior art. 40 

Even the Court does not suggest that the computer pro- 
gram developed by Diehr and Lutton is a patentable dis- 
covery. Accordingly, if we treat the program as though it 
were a familiar part of the prior art as well-established 
precedent requires 41 it is absolutely clear that their appli- 
cation contains no claim of patentable invention. Their ap- 
plication was therefore properly rejected under 101 by the 
Patent Office and the Board of Appeals. 

IV 

The broad question whether computer programs should be 
given patent protection involves policy considerations that 

40 Although the Court of Customs and Patent Appeals erred because it 
ignored the distinction between the 101 requirement that the applicant 
must claim to have discovered a novel process and the 102 requirement 
that the discovery must actually bo novel, that court correctly rejected 
the argument that any difference between Claim 11 and the earlier claims 
was relevant to the 101 inquiry. See 602 F. 2d, at 984, 987-988. 
"This woIl-cvtjibliMhocl precedent WH reviewed in Parker v. Flook: 
"Mackay Radio and Funk Bro*. point to the proper analysis for this 
case; The process itself, not merely the mathematical algorithm, must be 
new and useful Indeed, the novelty of the mathematical algorithm is 
not a determining factor at all. Whether the algorithm wa in fact known 
or unknown at the time of the claimed invention, as one of the 'basic 
tools of scientific and technological work/ HCO Gatt&chdk v. Benxon, 409' 
U. S. ; at 67, it is treated as though it were a familiar part of the prior 
art/' 437 U. 8., at 591-592. 



DIAMOND v. DIEHR 217 

175 STEVENS, J., dissenting 

this Court is not authorized to address. See Gottschalk v. 
Benson, 409 U. S., at 72-73; Parker v. Flook, 437 U. S., at 
595-596. As the numerous briefs amicus curiae filed in 
Gottschalk v. Benson, supra, Dann v. Johnston, 425 TJ. S. 219 
(1976), Parker v. Flook, supra, and this case demonstrate, that 
question is not only difficult and important, but apparently 
also one that may be affected by institutional bias. In each of 
those cases, the spokesmen for the organized patent bar have 
uniformly favored patentability and industry representatives 
have taken positions properly motivated by their economic 
self-interest. Notwithstanding fervent argument that patent 
protection is essential for the growth of the software indus- 
try, 42 commentators have noted that "this industry is grow- 
ing by leaps and bounds without it." 43 In addition, even 



42 For example, the Association of Data Processing Service Organiza- 
tions, appearing as amicus curiae in Flook, made the following policy 
argument : 

"The need of the incentive of patents for software is at least as great 
as that of the incentive available for hardware, because: 'Today, provid- 
ing computer software involves greater . . . risk than providing com- 
puter . . . hardware. , . .' 

"To a financial giant, the economic value of a patent may not loom 
large; to the small software products companies upon which the future 
of the development of quality software depends, the value of the patent 
in financing a small company may spell the difference between life and 
death. To banks and financial institutions the existence of a patent or 
even the potentiality of obtaining one may well be a decisive factor in 
determining whether a loan should be granted. To prospective investors 
a patent or the possibility of obtaining one may be the principal element 
in the decision whether to invest. 

"Making clear that patents may be available for inventions in software 
would unleash important innovative talent. It would have the direct 
opposite effect forecast by the . . . hardware manufacturers; it would 
enable competition with those companies and provide the needed incen- 
tive to stimulate innovation." Brief for ADAPSO as Amicus Curiae in 
Parker v. Flook, O. T. 1977, No. 77-642, p. 44 (footnote omitted). 

48 Gemignani, supra n. 1, at 309. In a footnote to that comment, Pro- 
fessor Gemignani added that the rate of growth of the software industry 



STBVBNS, J., dissenting 450 U.S. 

some commentators who believe that legal protection for 
computer programs is desirable have expressed doubts that the 
present patent system can provide the needed protection. 44 
Within the Federal Government, patterns of decision have 
also emerged. Gottschalk, Dann, Parker, and Diamond were 
not ordinary litigants each was serving as Commissioner 
of Patents and Trademarks when he opposed the availability 
of patent protection for a program-related invention. No 
doubt each may have been motivated by a concern about the 
ability of the Patent Office to process effectively the flood of 
applications that would inevitably flow from a decision that 
computer programs are patentable. 45 The consistent concern 
evidenced by the Commissioner of Patents and Trademarks 
and by the Board of Appeals of the Patent and Trademark 
Office has not been shared by the Court of Customs and 
Patent Appeals, which reversed the Board in Benson, John- 
ston, and Flook, and was in turn reversed by this Court in 
each of those cases. 4 * 



"has been even faster lately than that of the hardware industry which 
does enjoy patent protections." Id., at 309, n. 269. Other commentators 
are in accord. See Nycum, Legal Protection for Computer Programs, 1 
Computer L. J. 1, 56-58 (1978) ; Note, Protection of Computer Programs: 
Resurrection of the Standard, 50 Notre Dame Law. 333, 344 (1974). 

44 See, e< g, t Gemignairi, supra n, 1, at 301-312; Kecfe & Mahn, Pro- 
tecting Software: Is It Worth AJ1 the Trouble?, 62 A. B. A. J, 906, 907 
(1976). 

45 This concern influenced the President's Commission on the Patent 
System when it recommended against patent protection for computer pro- 
grams. In its report, the President^ Commission stated: 

"The Patent Office now cannot examine applications for programs be- 
cause of the lack of a classification technique and the requisite search 
files. Even if these were available, reliable aearches would not be feasible 
or economic because of the tremendous volume of prior art being gen- 
erated. Without this search, the patenting of programs would be tanta- 
mount to mere registration and the presumption of validity would be all but 
nonexistent," Report of the President's Commission, jupra n, 10, at 13. 

46 It is noteworthy that the position of the Court of Customs and 
Patent Appeals in the process patent area bad been consistent with that 



DIAMOND v. DIEHR 219 

175 STEVENS, J., dissenting 

Scholars have been critical of the work of both tribunals. 
Some of that criticism may stem from a conviction about 
the merits of the broad underlying policy question; such 
criticism may be put to one side. Other criticism, however, 
identifies two concerns to which federal judges have a duty 
to respond. First, the cases considering the patentability of 
program-related inventions do not establish rules that enable 
a conscientious patent lawyer to determine with a fair degree 
of accuracy which, if any, program-related inventions will 
be patentable. Second, the inclusion of the ambiguous con- 
cept of an "algorithm" within the 'law of nature" category 
of unpatentable subject matter has given rise to the concern 
that almost any process might be so described and therefore 
held unpatentable. 

In my judgment, today's decision will aggravate the first 
concern and will not adequately allay the second. I believe 
both concerns would be better addressed by (1) an unequiv- 
ocal holding that no program-related invention is a patent- 
able process under 101 unless it makes a contribution to 
the art that is not dependent entirely on the utilization of a 
computer, and (2) an unequivocal explanation that the term 
"algorithm" as used in this case, as in Benson and Flook, is 
synonymous with the term "computer program/' 47 Because 



of the Commissioner of Patents and Trademarks for decades prior to 
1968. As discussed in Part I, supra, in that year the court rejected two 
longstanding doctrines that would have foreclosed patentability for most 
computer programs under 101. 

47 A number of authorities have drawn the conclusion that the terms 
are in fact synonymous. See, e. g., Novick & Wallenstein, supra n. 5, at 
333, n. 172; Anderson, Algorithm, 1 Encyclopedia of Computer Science & 
Technology 364, 369 (J. Bdzer, A. Holzman & A. Kent eds. 1975); 
E. Horowitz & S. Sahni, Fundamentals of Computer Algorithms 2 (1978) ; 
A. Tanenbaum, Structured Computer Organization 10 (1976). Cf. Blu- 
menthal & Biter, supra n. 15, at 455-456; Genugnani, supra n. 1, at 
271-273, 276, n. 37. 



220 OCTOBER TERM, 1980 

STEVENS, J., dissenting 460 U.S. 

the invention claimed in the patent application at issue in 
this case makes no contribution to the art that is not entirely 
dependent upon the utilization of a computer in a familiar 
process, I would reverse the decision of the Court of Customs 
and Patent Appeals. 



SCHWEIKER v. WILSON 221 

Syllabus 



SCHWEIKER, SECRETARY OF HEALTH AND HUMAN 
SERVICES v. WILSON ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 
NORTHERN" DISTRICT OF ILLINOIS 

No. 79-1380. Argued December 2, 1980 Decided March 4, 1981 

The Supplemental Security Income (SSI) program, which is part of the 
Social Security Act, provides a subsistence allowance to needy aged, 
blind, and disabled persons. Inmates of public institutions are gen- 
erally excluded from this program, except that under 1611 (e)(l)(B) 
of the Act a reduced amount of SSI benefits are provided to otherwise 
eligible persons in a hospital, extended care facility, nursing home, or 
intermediate care facility receiving Medicaid funds for their care. 
Appellees, aged 21 through 64 and residing in public mental institutions 
that do not receive Medicaid funds for their care, brought a class 
action in Federal District Court challenging their exclusion from the 
reduced SSI benefits. The District Court held such exclusion uncon- 
stitutional as violative of the equal protection guarantees of the Due 
Process Clause of the Fifth Amendment on the ground that the "men- 
tal health" classification could not withstand judicial scrutiny because 
it did not have a "substantial relation" to the object of the legislation 
in light of its "primary purpose." 

Held: Appellees 1 rights to equal protection were not violated by denying 
them SSI benefits. Pp. 230-239. 

(a) In 1611 (e)(l)(B), Congress made a distinction not between 
the mentally ill and a group composed of nonmentally ill, but between 
residents in public institutions receiving Medicaid funds for their care 
and residents in such institutions not receiving such funds. To the 
extent that the statute has an indirect impact upon the mentally ill as 
a subset of publicly institutionalized persons, the record in this case 
presents no statistical support for a contention that the mentally ill as 
a class are burdened disproportionately to any other class affected by 
the classification. The indirect deprivation worked by this legislation 
upon appellees' class, whether or not the class is considered "suspect," 
does not, in the absence of any evidence that Congress deliberately in- 
tended to discriminate against the mentally ill, move this Court to 
regard it with a heightened scrutiny. Pp. 230-234. 

(b) The classification employed in 1611 (e)(l)(B) is to be judged 
under the rational-basis standard, which does not allow this Court to 



UOlUJOJUtt ULIUML, 

Opinion of the Court 450 U.S. 

substitute its personal notions of good public policy for those of Con- 
gress. Under this standard, and based on tho legislative history, it was 
not irrational for Congress to elect, in view of budgetary constraints, 
to shoulder only part- of the burden of supplying a "comfort money" 
allowance, leaving the States with the primary responsibility for making 
such an allowance available to those residents in state-run institutions, 
and to decide that it is the Medicaid recipients in public instittitions 
who are the most needy and deserving of the SSI benefits. Pp. 2.34-239. 
478 F. Supp. 1046, reversed. 

BLACKMUN, J., delivered the opinion of the Court, in which BURGER, 
C. J., and STEWART, WHITE, and HKHNQUXOT, JJ., joined. POWELL, J., 
filed a dissenting opinion, in which BRENNAX, MARSHALL,, and STEVENS, 
JJ., joined, post, p. 239. 

Elliott Schulder argued the cause for appellant. With him 
on the briefs were Solicitor General McCree and Deputy 
Solicitor General Getter. 

James D. Weill argued the cause for appellees. With him 
on the brief were Robert E. Lehrer, Marianne R> Smigelskis, 
and Thomas J. Grippando* 

JUSTICE BLACKMUN delivered the opinion of the Court, 

The issue in this case is whether Congress constitutionally 
may decline to grant Supplemental Security Income benefits 
to a class of otherwise eligible individuals who are excluded 
because they are aged 21 through 64 and are institutionalized 
in public mental institutions that do not receive Medicaid 
funds for their care. The United States District Court for 
the Northern District of Illinois held unconstitutional, under 

*Briefs of amid curiae urging affirmance were filed by Robert Abrarrw, 
Attorney General of New York, Shirley Adelaon Siegel, Solicitor General, 
Alan W. Rubinstein, Assistant Attorney General, and Harvey Bartel III, 
Attorney General of Pennsylvania, for the State of New York et aL; by 
Judy Greenwood, Margaret F. Ewing, and Paul R. Friedman for the 
National Association for Mental Health et al.; and by William A. 
Carnahan for the New York, Pennsylvania, and California Associations of 
Private Psychiatric Hospitals. 



SCHWEIKEB, v. WILSON 223 

221 Opinion of the Court 

the Due Process Clause of the Fifth Amendment, that portion 
of the Social Security Act, as amended, that excludes these 
otherwise eligible persons from the supplemental benefits. 
The Secretary of Health and Human Services has taken a 
direct appeal to this Court under 28 TL S. C. 1252. 



In October 1972, Congress amended the Social Security Act 
(Act) to create the federal Supplemental Security Income 
(SSI) program, effective January 1, 1974, 86 Stat. 1465, 42 
U. S. C. 1381 et seq. This program was intended "[t]o 
assist those who cannot work because of age, blindness, or 
disability/ 7 S. Rep. No. 92^-1230, p. 4 (1972), by "set [ting] a 
Federal guaranteed minimum income level for aged, blind, 
and disabled persons/ 7 id., at 12. 1 

The SSI program provides a subsistence allowance, under 
federal standards, to the Nation's needy aged, blind, and 
disabled. 2 Included within the category of "disabled" under 
the program are all those "unable to engage in any substantial 
gainful activity by reason of any medically determinable 
physical or mental impairment which can be expected to 



1 The SSI program, Title XVI of the Social Security Act, largely re- 
placed the prior system of federal grants to state-run assistance programs 
for the aged, blind, and disabled contained in Titles I, X, XIV, and XVI 
of the Act, that is, Old Age Assistance, 49 Stat. 620, as amended, 42 
U. S. C. 301 et seq.; Aid to the Blind, 49 Stat. 645, as amended, 42 
U. S. C. 1201 et seq.; Aid to the Permanently and Totally Disabled, 64 
Stat. 555, as amended, 42 U. S. C. 1351 et seq.; and Aid to the Aged, 
Blind, or Disabled, 76 Stat. 197, 42 TJ. S. C. 1381 et seq. (1970 ed.). See 
Caiifano v. Aznavorian, 439 U. S. 170, 171 (1978) ; CaUfano v. Torres, 435 
U. S. 1, 2 (1978). 

2 To be eligible for SSI benefits, a person must be "aged/' that is, 65 
or older, or "blind," or "disabled," as those terms are defined in 1614 
of the Act, as amended, 42 TJ. S. C. 1382c, and his income and resources 
must be below the levels specified in 1611 (a), as amended, 42 II. S. C. 
1382 (a). 



596 OCTOBER TERM, 1980 

Opinion of the Court 450 U.S. 

all relevant facts ha[d] been fully explored in an evidentiary 
hearing, [the Commission] would have no assurance that a 
decision finally reached by [the Commission] would contrib- 
ute more to listener satisfaction than the result favored by 
station management/ " Policy Statement, 60 F. C. C. 2d 
858, 865 (1976). It did not assert that reliance on the mar- 
ketplace would achieve a perfect correlation between lis- 
tener preferences and available entertainment programming. 
Rather, it recognized that a perfect correlation would never 
be achieved, and it concluded that the marketplace alone 
could best accommodate the varied and changing tastes of the 
listening public. These predictions are within the institu- 
tional competence of the Commission. 

Our opinions have repeatedly emphasized that the Com- 
mission's judgment regarding how the public interest is best 
served is entitled to substantial judicial deference. See, e, g., 
FCC v. National Citizens Committee for Broadcasting, supra; 
FCC v. WOKO, Inc., 329 U. S. 223, 229 (1946). Further- 
more, diversity is not the only policy the Commission must 
consider in fulfilling its responsibilities under the Act. The 
Commission's implementation of the public-interest standard, 
when based on a rational weighing of competing policies, is 
not to be set aside by the Court of Appeals, for "the weighing 
of policies under the 'public interest' standard is a task that 
Congress has delegated to the Commission in the first in- 
stance. 3 ' FCC v. National Citizens Committee for Broadcast- 
ing, supra, at 810. The Commission's position on review of 
format changes reflects a reasonable accommodation of the 



224 OUTUJJlfiR TERM, 1980 

Opinion of the Court 460 "U.S. 

result in death or which has lasted or can be expected to last 
for a continuous period of not less than twelve months." 
1614 (a) (3) (A) of the Act, 42 U. S. C. 1382c (a) (3) (A). 
Although the SSI program is broad in its reach, its coverage 
is not complete. From its very inception, the program has 
excluded from eligibility anyone who is an "inmate of a 
public institution." 1611 (e) (1) (A) of the Act, as amended, 
42 TJ. S. C. 1382 (e)(l)(A). 3 Also from the program's in- 
ception, Congress has made a partial exception to this ex- 
clusion by providing a small amount of money (not exceeding 
$300 per year) to any otherwise eligible person in "a hospital, 
extended care facility, nursing home, or intermediate care 
facility receiving payments (with respect to such individual 
or spouse) under a State plan approved under subchapter 
XIX [Medicaid] . . . ." 1611 (e)(l)(B), as amended, 42 
U. S. C. 1382 (e)(l)(B). 4 Congress thus, while excluding 



3 Section 1611 (e)(l)(A), as amended, provides: 
"(e) Limitation on eligibility of certain individuals 

"(1)(A) Except as provided in subparagraph (B) and (C), no person 
shall be an eligible individual or eligible spouse for purposes of this sub- 
chapter with respect to any month if throughout such month he is an 
inmate of a public institution/' 

* Section 1611 (e) (1)(B), as amended, modifying 1611 (e)(l)(A), aa 
amended, states: 

"(B) In any case where an eligible individual or his eligible spouse (if 
any) is, throughout any month, in a hospital, extended care facility, nurs- 
ing home, or intermediate care facility receiving payments (with respect 
to such individual or spouse) under a State plan approved under title 
XIX, the benefit under this title for such individual for such month shall 
be payable 

"(i) at a rate not in excess of $300 per year (reduced by the amount 
of any income not excluded pursuant to section 1612 (b)) in the case of an 
individual who does not have an eligible spouse; 

"(ii) in the case of an individual who has an eligible spouse, if only one 
of them is in such a hospital, home or facility throughout such month, at 
a rate not in excess of the sum of 

"(I) the rate of $300 per year (reduced by the amount of any income, 



SCHWETKER v. WILSON 225 

221 Opinion of the Court 

generally any person residing in a public institution, explicitly 
has tied eligibility for a reduced amount of SSI benefits to 
residence in an institution receiving Medicaid benefits for the 
care of the eligible individual. 

Appellees brought this suit to challenge this resulting de- 
tail of Congress' having conditioned the limited assistance 
grant on eligibility for Medicaid: a person between the ages 
of 21 through 64 who resides in a public mental institution 
is not eligible to receive this small stipend, even though that 
person meets the other eligibility requirements for SSI bene- 
fits, because treatment in a public mental institution for a 
person in this age bracket is not funded under Medicaid.* 

not excluded pursuant to section 1612 (b), of the one who is in such 
hospital, home, or facility), and 

"(II) the applicable rate specified in subsection (b) (1) (reduced by 
the amount of any income, not excluded pursuant to section 1612 (b), of 
the other) ; and 

"(iii) at a rate not in excess of $600 per year (reduced by the amount 
of any income not excluded pursuant to section 1612 (b)) in the case of 
an individual who has an eligible spouse, if both of them are in such a 
hospital, home, or facility throughout such month." 

Subsection (C) of 1611 (e)(l), not implicated in this case, further 
modifies 1611 (e)(l)(A), as amended, by providing: 

"(C) As used in subparagraph (A), the term 'public institution' does 
not include a publicly operated community residence which serves no more 
than 16 residents." 

Added in 1976 by Pub. L. 94-566, 605 (a), 90 Stat. 2686, this subsec- 
tion met objections that 1611 (e) impeded reform efforts to de-institu- 
tionalize certain groups of handicapped individuals, such as the mentally 
retarded. Congress determined to encourage the establishment of state- 
run group homes for such people by making residents in these institutions 
eligible for SSI benefits. See S. Rep. No. 94r-1265, p. 29 (1976) ; H. R. 
Conf, Rep. No. 94-1745, pp. 27-28 (1976). 

5 Federal funds are available under the Medicaid program to pay for 
the following "residential" services: "inpatient hospital services (other 
than services in an institution for tuberculosis or mental diseases)," 1906 
(a)(l), 42 U. S. C. 1396d(a)(l); "skilled nursing facility services 
(other than services in an institution for tuberculosis or mental diseases) 
for individuals 21 years of age or older," 1905 (a) (4) (A) ; "inpatient 



226 OCTOBER TERM, 1980 

Opinion of the Court 450 TL S. 

Appellees attack this statutory classification as violative of 
the equal protection component of the Fifth Amendment's 
Due Process Clause. 6 Their challenge, successful in the Dis- 
trict Court, is twofold. First, they argue that the exclusion 
of their class of mentally ill (and therefore disabled) persons 
bears no rational relationship to any legitimate objective of 
the SSI program. They assert, in fact, that their class was 
excluded inadvertently because of its political powerlessness. 
Brief for Appellees 6, 32. Second, they insist that because the 
statute classifies on the basis of mental illness, a factor that 



hospital services, skilled nursing facility services, and intermediate care 
facility services for individuals 65 years of age or over in an institution 
for tuberculosis or mental diseases," 1905 (a) (14) ; "intermediate care 
facility services (other than such services in an institution for tuberculosis 
or mental diseases) for individuals ... in need of such care," 1905 (a) 
(15) ; certain "inpatient psychiatric hospital services for individuals under 
age 21," 1905 (a) (16) and (h). Subsection (17) (B) of 1905 (a), 
which provides for funding of any other medical or remedial care recog- 
nized under state law, specifically excludes "payments with respect to 
care or services for any individual who has not attained 65 years of age 
and who is a patient in an institution for tuberculosis or mental diseases." 

In 1950, when it first enacted federal grants for medical assistance, Con- 
gress excluded "any individual . . . who is a patient in an institution for ... 
mental diseases" from eligibility, 64 Stat 558. This exclusion was incor- 
porated into the Medicaid statute in 1965, 79 Stat. 352, but exceptions 
were made for the needy aged in mental institutions, and for the care of 
mentally ill persons in general medical facilities. Ibid. In 1972, in the 
bill enacting the SSI program, Congress further broadened Medicaid bene- 
fits for the mentally ill to include most children in mental institutions. 
86 Stat. 1461. A Senate proposal for demonstration projects to investi- 
gate the possibility of extending Medicaid benefits to the mentally ill be- 
tween the ages of 21 through 64 in mental hospitals was defeated at that 
time. See S. Rep. No. 92-1230, p. 281 (1972); H. R. Conf. Rep. No. 
92-1605, p. 65 (1972). 

6 This Court repeatedly has held that the Fifth Amendment imposes 
on the Federal Government the same standard required of sUte legisla- 
tion by the Equal Protection Clause of the Fourteenth Amendment. See, 
e. g., Weinberger v. Sdlfi, 422 II. S. 749, 768-770 (1975) ; Richardson v. 
Belcher, 404 TJ. S. 78, 81 (1971). 



v. WILSON 227 

221 Opinion of the Court 

greatly resembles other characteristics that this Court has 
found inherently "suspect" as a means of legislative classi- 
fication, special justification should be required for the con- 
gressional decision to exclude appellees. 

II 

This case has had a somewhat complex procedural history. 
It initially was instituted in December 1973 as a class action 
for injunctive and declaratory relief to challenge the federal 
and Illinois assistance schemes that prevailed prior to the 
effective date of the SSI program. See Wilson v. Edelman, 
542 F. 2d 1260, 1263-1266 (CA7 1976). The then-existing 
state assistance program, for which federal funds were re- 
ceived, excluded from eligibility any person who was residing 
in a public mental or tuberculosis institution or who was con- 
fined in a penal institution. Id., at 1263, n. 2. The plain- 
tiffs later amended their complaint to include a challenge to 
the SSI exclusion, which by then had come into effect. Id., 
at 1266. A three-judge court was convened under 28 U. S. C. 
2281 and 2282 (1970 ed.) (since repealed by Pub. L. 94r- 
381, 1 and 2, 90 Stat. 1119). The case was consolidated 
with another that challenged the exclusion from SSI benefits 
of any pretrial detainee. Relying on Weinberger v. Salfi, 
422 U. S. 749 (1975), the court granted the Secretary's mo- 
tion to dismiss both cases for lack of subject-matter jurisdic- 
tion on the ground that the plaintiffs had failed to exhaust the 
administrative remedies provided for by 1631 (c)(3) of the 
Act, as amended, 42 TJ. S. C. 1383 (c)(3). See 542 R 2d, 
at 1267-12687 

On appeal, appellees abandoned their claims under the prior 
federal statutes. Id., at 1271. The United States Court of 

7 The three-judge court also- found that the state statute classified on the 
basis of age, not mental health, and that it was rational and constitutional. 
The Court of Appeals declined to review that constitutional holding on the 
ground that review from the three-judge court could be had only in this 
Court. Wilson v. Edelman, 542 F. 2d, at 1276-1282. 



228 OCTOBER TERM, 1980 

Opinion of the Court 450 U.S. 

Appeals for the Seventh Circuit reversed the dismissal, hold- 
ing that the Secretary (then Patricia Harris) had waived any 
requirement of exhaustion by her submission of the case to 
the District Court for summary disposition. 8 Id., at 1272. 
Because the plaintiffs had dropped their request for injunctive 
relief, the case was remanded to the single- judge District Court. 
Id., at 1269. That court, on remand, certified the class 9 and 
granted appellees' motion for summary judgment, holding that 
1382 (e)'s exclusion of the class members violated the equal 
protection guarantee of the Due Process Clause of the Fifth 
Amendment. Sterling v. Harris, 478 P. Supp. 1046 (ND 111. 
1979) . 10 The District Court reasoned that the statute "creates 
three classifications: (1) age, and (2) residence in a public, 
(3) mental health hospital." Id., at 1050. It ruled that 
Congress' use of the first two factors need be justified only by 



8 The Court of Appeals also held that only two of the named plaintiffs, 
Maudie Simmons and John Kiernan Turney, had satisfied the minimum, 
nonwaivable requirement of 42 U. S. C. 405 (g) that a party may seek 
review only of a "final decision of the Secretary" denying, terminating, or 
suspending benefits under the SSI program. The other named plaintiffs, 
including Charles Wilson, were eligible for, or had sought and been denied, 
benefits only under the prior cooperative state-federal programs, and 
therefore they were dismissed as parties, We have retained Wilson as a 
named party in the caption of this case, however, as did the District 
Court on remand, for the sake of uniformity. 

9 The class was defined as "all persons residing in HEW Region V who 
have been terminated from benefits under Title XVI, or who have applied 
for Supplemental Security Income benefits under Title XVI and have been 
denied such benefits, on or after January 1, 1974, solely because they are 
between the ages of 21 and 65 and hospitalized in a public mental institu- 
tion." App. to Juris. Statement 21a. 

10 The District Court denied, however, the claim of the pretrial detainees 
to the monthly stipend, applying a "rational relation" standard and find- 
ing the exclusion rational because "[t]he detainee status is necessarily 
temporary in nature, and the [Secretary] could legitimately wish to with- 
hold these extra-subsistence payments while the detainee is housed in a 
public institution and until his future status is determined." 478 F. Supp., 
at 1055. 



SCHWETKER v. WILSON" 229 

221 Opinion of the Court 

demonstration of their "rational relationship" to "a legitimate 
state interest." Ibid. Under that standard, these classifica- 
tions withstood scrutiny. Congress' use, however, of a "mental 
health" classification was deemed to require a closer examina- 
tion because "mental health classifications possess the signifi- 
cant indicia of the suspect classifications recognized in other 
cases." Id., at 1052. Although recognizing that the mentally 
ill as a group do not demonstrate all the characteristics this 
Court has considered as denoting inherently suspicious classifi- 
cations, such as race and national origin, 11 the District Court 
believed that the mentally ill were "a politically impotent, in- 
sular minority" that "have been subject to a 'history of un- 
equal protection. 3 " Ibid. The court therefore concluded 
that Congress could legislatively disfavor the mentally ill, as 
1611 (e) did, only if the statutory classification passes an 
"intermediate level of judicial scrutiny," id., at 1063, that is, 
only if the "classification bears a substantial relation" to the 
object of the legislation evaluated "in light of the primary 
purpose" of the scheme of which it is a part. Ibid. The 
court adjudged that the "primary purpose" of the small 
monthly stipend was to enable the needy to purchase comfort 
items not provided by the institution. Rejecting the Secre- 
tary's proposed justifications for the exclusion, 12 the District 
Court held that the classification could not withstand scrutiny. 



11 The District Court noted that a person's mental health problem, 
especially one that has led to institutionalization, is likely to " 'bear [a] 
relation to ability to perform or contribute to society/ " Id., at 1051- 
1052, quoting Frontiero v. Richardson, 411 U. S. 677, 686 (1973). The 
court also acknowledged that "[i]t is debatable whether and to what 
extent the mental illness is an 'immutable characteristic determined solely 
by the accident of birth/ " 478 F. Supp., at 1052, again quoting Fron- 
tiero, 411 U. S., at 686. 

12 The Secretary argued that the statutory exclusion has three purposes: 
"1) the conservation of federal resources; 2) the concern that federal funds 
be received on behalf of residents of qualified institutions; and 3) the fact 
that plaintiffs are not 'similarly situated' with Medicaid patients in terms 
of federal interest and control." 478 P. Supp., at 1053. 



230 OCTOBER TERM, 1980 

Opinion of the Court 450 U. S. 

The legislative history, it said, revealed no intent to exclude 
appellees' class; the court could conceive of no "possible un- 
expressed purpose for the exclusion" ; and the court reasoned 
that "aged, blind and disabled inmates of all public institu- 
tions would have similar needs." Ibid. Upon the Secretary's 
direct appeal from this judgment, we noted probable jurisdic- 
tion. Harris v. Wilson, 446 TL S. 964 (1980). 

Ill 



The equal protection obligation imposed by the Due Process 
Clause of the Fifth Amendment is not an obligation to provide 
the best governance possible. This is a necessary result of 
different institutional competences, and its reasons are obvi- 
ous. Unless a statute employs a classification that is inher- 
ently invidious or that impinges on fundamental rights, areas 
in which the judiciary then has a duty to intervene in the 
democratic process, this Court properly exercises only a limited 
review power over Congress, the appropriate representative 
body through which the public makes democratic choices 
among alternative solutions to social and economic problems. 
See San Antonio School District v. Rodriguez, 411 U. S. 1 
(1973). At the minimum level, this Court consistently has 
required that legislation classify the persons it affects in a 
manner rationally related to legitimate governmental objec- 
tives. See, e. g., Dandridge v. Williams, 397 U. S. 471 (1970) ; 
Mathews v. De Castro, 429 U. S. 181 (1976) . Appellees assert 
that the particular grant of federal benefits under review 
here, however, should "be subjected to a heightened standard 
of review/' Brief for Appellees 39, because the mentally ill 
"historically have been subjected to purposeful unequal treat- 
ment; they have been relegated to a position of political 
powerlessness; and prejudice against them curtails their par- 
ticipation in the pluralist political system and strips them 
of political protection against discriminatory legislation/' 
(Footnote omitted.) Id., at 41. 



SCHWEIKER v. WILSON 231 

221 Opinion of the Court 

We have no occasion to reach this issue because we conclude 
that this statute does not classify directly on the basis of 
mental health. 13 The SSI program distinguishes among three 
groups of persons, all of whom meet the basic eligibility re- 
quirements: persons not in a "public institution" may re- 
ceive full benefits; persons in a "public institution" of a cer- 
tain nature ("hospital, extended care facility, nursing home, 
or intermediate care facility receiving payments (with respect 
to such individual or spouse) . . . under [Medicaid])" (em- 
phasis added), 1611 (e)(l)(B), may receive reduced bene- 
fits; and persons in any other "public institution" may not 
receive any benefits. The statute does not isolate the men- 
tally ill or subject them, as a discrete group, to special or 
subordinate treatment. At the most, this legislation inci- 
dentally denies a small monthly comfort benefit to a certain 
number of persons suffering from mental illness; but in so 
doing it imposes equivalent deprivation on other groups who 
are not mentally ill, while at the same time benefiting sub- 
stantial numbers of the mentally ill. 

The group thus singled out for special treatment by 1611 
(e) does not entirely exclude the mentally ill. In fact, it 
includes, in a sizable proportion to the total population re- 
ceiving SSI benefits, large numbers of mentally ill people. 14 



13 We therefore intimate no view as to what standard of review applies 
to legislation expressly classifying the mentally ill as a discrete group. 

14 Social Security Administration statistics show that 30 7% of all blind 
and disabled adult persons awarded SSI benefits in 1975 (109,509 persons) 
were deemed disabled by mental disorders, and the Administration has con- 
cluded that "[m]ental illness was the most common cause of disability 
in 1975." Kochhar, Blind and Disabled Persons Awarded Federally Ad- 
ministered SSI Payments, 1975, Social Security Bulletin 13, 15 (June 
1979) Half of this number suffered from mental illness rather than men- 
tal retardation, and these statistics did not include any persons with prior 
entitlement to benefits. Ibid. 

Further, as a recent study also indicates, a substantial number of men- 
tally ill people in institutions actually receive SSI benefits. Social Secu- 
rity Administration, Representative Payments under the SSI Program, 



232 OCTOBER TERM, 1980 

Opinion of the Court 450 TJ. S. 

Further, the group excluded is not congruent with appellees' 
class. Among those excluded are the inmates of any other 
nonmedical "public institution," such as a prison, other penal 
institution, and any other publicly funded residential program 
the State may operate; 1C persons residing in a tuberculosis 
institution ; and residents of a medical institution not certified 
as a Medicaid provider. 16 Although not by the same sub- 
section, Congress also chose to exclude from SSI eligibility 
persons afflicted with alcoholism or drug addiction and not 
undergoing treatment, 1611 (e) (3) (A), and persons who 
spend more than a specified time outside the United States, 
1611 (f). See Califano v. Aznavorian, 439 U. S. 170 (1978) 
(upholding constitutionality of 1611 (f)) ; Califano v. Torres, 
435 U. S. 1 (1978) (upholding constitutionality of Congress' 
exclusion from SSI eligibility of residents of Puerto Rico). 
Thus, in 1611 (e), Congress made a distinction not between 
the mentally ill and a group composed of nonmentally ill, but 
between residents in public institutions receiving Medicaid 

August 1977, Research and Statistics Note No. 9 (Sept. 16, 1980). 
This study established that 15% of the total population receiving SSI 
benefits (for all reasons, including age, blindness, and disability) had 
"representative payees" (a person "appointed to manage the benefits of an 
adult beneficiary" because of "the adult beneficiary's inability to manage 
his own funds"). Id., at 1. Out of a total of 184,133 institutionalized 
persons who were receiving SSI benefits in August 1977 through such 
"representative payees," 76,494, or approximately 41%, were institution- 
alized because of mental disorders. Id., at 7 (Table 6) and 2 (Table 1). 
Thus, even on this incomplete data, a sizable number of SSI recipients 
were persons institutionalized for mental illness. 

15 Appellees appear to concede the rationality of Congress' general ex- 
clusion of publicly institutionalized persons from full SSI benefits. 

16 AJI otherwise eligible person does not receive SSI benefits if he is 
receiving long-term treatment in a medical facility that is not certified 
under Medicaid standards as a provider. See 1861 of the Act, 42 
U. S. C. 1395x. These strict standards exclude many facilities but work 
to the ultimate benefit of those receiving Medicaid Cf . O'Bannon v. Town 
Court Nursing Center, 447 U. S. 773 (1980). 



SCHWEIKER v. WILSON 233 

221 Opinion of the Court 

funds for their care and residents in such institutions not 
receiving Medicaid funds. 

To the extent that the statute has an indirect impact upon 
the mentally ill as a subset of publicly institutionalized per- 
sons, this record certainly presents no statistical support for a 
contention that the mentally ill as a class are burdened dis- 
proportionately to any other class affected by the classification. 
The exclusion draws a line only between groups composed 
(in part) of mentally ill individuals: those in public mental 
hospitals and those not in public mental hospitals. These 
groups are shifting in population, and members of one group 
can, and often do, pass to the other group. 17 

We also note that appellees have failed to produce any 
evidence that the intent of Congress was to classify on the 

17 The average mpatient stay in public mental hospitals is short. Re- 
cently collected data for 1975 reveal a median stay in state and county 
mental hospitals of only 25.5 days. Witkin, Characteristics of Admissions 
to Selected Mental Health Facilities, 1975 : An Annotated Book of Charts 
and Tables, National Institute of Mental Health 93, DHHS Publication 
No. (ADM) 80-1005 (1981). This study also showed that young and 
elderly patients had longer periods of stay than patients in the middle-age 
group Id., at 95. The rapidity with which inpatients are released from 
public institutions has increased since the 1950's. In 1971 75% of all 
patients admitted to state mental hospitals were released within the first 
three months, while 87% were released within the first six months. Ozarin, 
Redick, & Taube, A Quarter Century of Psychiatric Care, 1950-1974: A 
Statistical Review, 27 Hospital & Community Psychiatry 515, 516 (1976) . 
Data from the National Institute of Mental Health show that the propor- 
tion of "patient care episodes" (admissions during a year plus residents 
at the beginning of the year) attributable to inpatient treatment at state 
and county hospitals declined from 49% in 1955 to 9% in 1977. This 
dramatic decrease in the percentage of persons admitted to these hospitals 
was paralleled by a growth in treatment through outpatient and commu- 
nity mental health facilities; that percentage grew from 23% in 1955 to 
76% in 1977. Witkin, Trends in Patient Care Episodes in Mental Health 
Facilities, 1955-1977, National Institute of Mental Health, Mental Health 
Statistical Note No. 154, p. 3 (Sept 1980). At the same time, the total 
number of "patient care episodes" increased fourfold, from approximately 
1.7 million in 1955 to 6.9 million in 1977. Id., at 1. 



234 OCTOBER TERM, 1980 

Opinion of the Court 450 U.S. 

basis of mental health. Appellees admit that no such evi- 
dence exists; indeed, they rely on the absence of explicit 
intent as proof of Congress' "inattention" to their needs and, 
therefore, its prejudice against them. Brief for Appellees 39. 
As in Jefferson v. Hackney, 406 U. S. 535 (1972), the indirect 
deprivation worked by this legislation upon appellees' class, 
whether or not the class is considered "suspect," does not with- 
out more move us to regard it with a heightened scrutiny. 
Cf. Personnel Administrator of Massachusetts v. Feeney, 442 
U. S. 256 (1979). 

B 

Thus, the pertinent inquiry is whether the classification 
employed in 1611 (e)(l)(B) advances legitimate legislative 
goals in a rational fashion. The Court has said that, although 
this rational-basis standard is "not a toothless one/' Mathews 
v. Lucas, 427 U. S. 495, 510 (1976), it does not allow us to 
substitute our personal notions of good public policy for those 
of Congress: 

"In the area of economics and social welfare, a State 
does not violate the Equal Protection Clause [and cor- 
respondingly the Federal Government does not violate 
the equal protection component of the Fifth Amendment] 
merely because the classifications made by its laws are 
imperfect. If the classification has some 'reasonable 
basis/ it does not offend the Constitution simply because 
the classification 'is not made with mathematical nicety 
or because in practice it results in some inequity/ 
Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 78." 
Dandridge v, Williams, 397 U. S., at 485. 

The Court also has said: "This inquiry employs a relatively 
relaxed standard reflecting the Court's awareness that the 
drawing of lines that create distinctions is peculiarly a legisla- 
tive task and an unavoidable one. Perfection in making the 
necessary classifications is neither possible nor necessary." 
Massachusetts Bd. of Retirement v. Murgia, 427 U. S. 307, 



SCHWEIKER v. WILSON 235 

221 Opinion of the Court 

314 (1976). See also United States Hailroad Retirement Bd. 
v. Fritz, 449 U. S. 166 (1980). As long as the classificatory 
scheme chosen by Congress rationally advances a reasonable 
and identifiable governmental objective, we must disregard 
the existence of other methods of allocation that we, as in- 
dividuals, perhaps would have preferred. 

We believe that the decision to incorporate the Medicaid 
eligibility standards into the SSI scheme must be considered 
Congress' deliberate, considered choice. The legislative rec- 
ord, although sparse, appears to be unequivocal. Both House 
and Senate Reports on the initial SSI bill noted the exclusion 
in no uncertain terms. The House Report stated : 

"People who are residents of certain public institutions, 
or hospitals or nursing homes which are getting Medicaid 
funds, would get benefits of up to $25 a month (reduced 
by nonexcluded income). For these people most sub- 
sistence needs are met by the institution and full bene- 
fits are not needed. Some payment to these people, 
though, would be needed to enable them to purchase 
small comfort items not supplied by the institution. No 
assistance benefits will be paid to an individual in a penal 
institution." H. R. Rep. No. 92-231, p. 150 (1971). 

The Senate Report followed the House's language almost iden- 
tically. See S. Rep. No. 92-1230, p. 386 (1972). We find 
these passages, at the very least, to be a clear expression of 
Congress' understanding that the stipend grant was to be 
limited to a group smaller than the total population of other- 
wise eligible, institutionalized people. That the bill's sec- 
tion-by-section analysis contained in the House Report laid 
out the terms of the exclusion precisely supports the conclu- 
sion that Congress was aware of who was included in that 
limited group. See H. R. Rep. No. 92-231, at 334. 

The limited nature of Medicaid eligibility did not pass 
unnoticed by the enacting Congress. In the same bill that 
established the SSI program, Congress considered, and passed, 



236 OCTOBER TERM, 1980 

Opinion of the Court 450 II. S. 

an amendment to Medicaid, providing coverage of inpatient 
services to a large number of the juvenile needy in public 
mental institutions. 18 See 1905 (h) of the Act, 42 TJ. S. C. 
1396d (h) ; S. Rep. No. 92-1230, at 280-281 ; H. R. Conf . Rep. 
No. 92-1605, p. 65 (1972) . Also, a Senate proposal for demon- 
stration projects on the feasibility of extending Medicaid to 
cover all inpatient services provided in public mental institu- 
tions was simultaneously defeated. See S. Rep. No. 92-1230, 
at 281; H. R. Conf. Rep. No. 92-1605, at 65. Congress was 
in the process of considering the wisdom of these limitations 
at the time it chose to incorporate them into the SSI provi- 
sions. The decision to do so did not escape controversy. The 
Committee hearings contained testimony advocating extension 
of both Medicaid and SSI benefits to all needy residents in 
public mental institutions. See Social Security Amendments 
of 1971, Hearings on H. R. 1 before the Senate Committee 
on Finance, 92d Cong., 1st and 2d Sess., 2180, 2408-2410, 
2479-2485, 3257, 3319 (1972). This legislative history shows 
that Congress was aware, when it added 1611 (e) to the 
Act, of the limitations in the Medicaid program that would 
restrict eligibility for the reduced SSI benefits; we decline to 
regard such deliberate action as the result of inadvertence 
or ignorance. See Maine v. Thiboutot, 448 U. S. 1, 8 (1980). 
Having found the adoption of the Medicaid standards in- 
tentional, we deem it logical to infer from Congress' deliberate 
action an intent to further the same subsidiary purpose that 
lies behind the Medicaid exclusion, which, as no party denies, 
was adopted because Congress believed the States to have a 
"traditional" responsibility to care for those institutionalized 

18 To be eligible for Medicaid reimbursement for inpatient services, men- 
tally ill persons under the age of 21 being treated in mental institutions 
must be receiving "active treatment" that meets standards prescribed by 
the Secretary and that "can reasonably be expected to improve the condi- 
tion, by reason of which such services are necessary, to the extent that 
eventually such services win no longer be necessary." 1905 (h) (1) (B) 
of the Act, 42 U. S. C. 1396d (h) (1) (B). 



SCHWEIKER v. WILSON 237 

221 Opinion of the Court 

in public mental institutions. 19 The Secretary, emphasizing 
the then-existing congressional desire to economize in the dis- 
bursement of federal funds, argues that the decision to limit 
distribution of the monthly stipend to inmates of public in- 
stitutions who are receiving Medicaid funds "is rationally 
related to the legitimate legislative desire to avoid spending 
federal resources on behalf of individuals whose care and 
treatment are being fully provided for by state and local 
government units'' and "may be said to implement a congres- 
sional policy choice to provide supplemental financial assist- 
ance for only those residents of public institutions who already 
receive significant federal support in the form of Medicaid 
coverage." Brief for Appellant 27-28. We cannot say that 
the belief that the States should continue to have the primary 
responsibility for making this small "comfort money" allow- 
ance available to those residing in state-run institutions is an 
irrational basis for withholding from them federal general 
welfare funds. 20 



19 The Medicaid limitation was based on Congress' assumption that the 
care of persons in public mental institutions was properly a responsibility 
of the States. See H. R Rep. No. 1300, 81st Cong., 1st Sess., 42 (1949) 
(enacting federal funding for services to the needy aged, blind, and dis- 
abled provided in public medical institutions, but excluding assistance to 
those in "public or private institutions for mental illness and tuberculosis, 
since the States have generally provided for medical care of such cases") ; 
S Rep No. 404, 89th Cong./ 1st Sess., pt. 1, pp. 144-147 (1965) (enact- 
ment of Medicaid providing coverage only to the aged needy in mental or 
tuberculosis institutions; noting that "[t]he reason for this exclusion was 
that long-term care in such hospitals had traditionally been accepted as a 
responsibility of the States/' id., at 144). This exclusion was upheld in 
Legion v. Richardson, 354 F. Supp. 456 (SDNY), summarily aff'd sub nom. 
Legion v. Weinberger, 414 U. S. 1058 (1973), and Kantrowitz v. Weinberger, 
388 F. Supp. 1127 (DC 1974), affd, 174 U. S. App. D. C. 182, 530 F. 2d 
1034, cert, denied, 429 U. S 819 (1976), and appellees disavow any intention 
to dispute that holding. Brief for Appellees 26-27; Tr. of Oral Arg. 19. 

20 Whether a State chooses to elect or not to elect to provide an 
equivalent monthly stipend to institutionalized mental patients does not 
alter the rationality of Congress' decision. 



238 OCTOBER TERM, 1980 

Opinion of the Court 450 U. S. 

Although we understand and are inclined to be sympathetic 
with appellees' and their supporting amici's assertions as to 
the beneficial effects of a patient's receiving the reduced sti- 
pend, we find this a legislative, and not a legal, argument. 
Congress rationally may elect to shoulder only part of the 
burden of supplying this allowance, and may rationally limit 
the grant to Medicaid recipients, for whose care the Federal 
Government already has assumed the major portion of the 
expense. 21 The limited gratuity represents a partial solution 
to a far more general problem, 22 and Congress legitimately 
may assume that the States would, or should, provide an 
equivalent, either in funds or in basic care. See Baur v. 
Mathews, 578 F. 2d 228, 233 (CA9 1978). This Court has 
granted a "strong presumption of constitutionality" to legisla- 
tion conferring monetary benefits, Mathews v. De Castro, 429 
II. S., at 185, because it believes that Congress should have 
discretion in deciding how to expend necessarily limited re- 
sources. Awarding this type of benefits inevitably involves 
the kind of line-drawing that will leave some comparably 
needy person outside the favored circle. 28 We cannot say 

21 The Secretary has interpreted 1611 (e)(l)(B) to require that at 
least 50% of the cost of services be reimbursed by Medicaid before the 
reduction of benefits becomes effective 20 CFR 416.231 (b) (5) (1980), 

22 Congress continues to investigate other more general solutions and 
to propose alterations in 1611 (e). See EL R. Rep. No. 96-451, pt. 1, 
p. 153 (1979); 125 Cong. Rec. 31349-31350, 31354-31355, 31356 (1979) 
(remarks of Rep, Gorman, Rep. Pepper, and Rep. Bingham) (proposing 
amendment to 1611 (e) to forestall reduction of benefits until after 
eligible individual has been institutionalized in a Medicaid institution for 
three months) ; Staff of the Senate Committee on Finance, The Supple- 
mental Security Income Program, 95th Cong., 1st Sess., 109-115 (Comm. 
Print 1977) (advocating legislative amendments standardizing the monthly 
stipend to institutionalized persons). 

23 "When a legal distinction is determined, as no one doubts that it may 
be, between night and day, childhood and maturity, or any other ex- 
tremes, a point has to be fixed or a line has to be drawn, or gradually 



SCHWEIKEE v. WILSON 239 

221 POWELL, J., dissenting 

that it was irrational of Congress, in view of budgetary con- 
straints, 24 to decide that it is the Medicaid recipients in public 
institutions that are the most needy and the most deserving 
of the small monthly supplement. See, e. g., Califano v. 
Boles, 443 U. S. 282, 296 (1979) ; Califano v. Jobst, 434 U. S. 
47, 53 (1977); Weinberger v. Salfi, 422 U. S. 749, 768-770 
(1975); Richardson v. Belcher, 404 U. S. 78, 83-84 (1971). 
We conclude that Congress did not violate appellees' rights 
to equal protection by denying them the supplementary 
benefit. The judgment of the District Court is reversed. 

It is so ordered. 

JUSTICE POWEIJL, with whom JUSTICE BRENKTAN, JUSTICE 
MARSHALL, and JUSTICE STEVENS join, dissenting. 

The Court holds that Congress rationally has denied a 
small monthly "comfort allowance" to otherwise eligible peo- 
ple solely because previously it rationally denied them Medic- 
aid benefits. In my view, Congress thoughtlessly has applied 



picked out by successive decisions, to mark where the change takes place. 
Looked at by itself without regard to the necessity behind it the line or 
point seems arbitrary It might as well or nearly as well be a little more 
to one side or the other. But when it is seen that a line or point there 
must be, and that there is no mathematical or logical way of fixing it 
precisely, the decision of the legislature must be accepted unless we can 
say that it is very wide of any reasonable mark." Louisville Gas Co. v. 
Coleman, 277 TL S. 32, 41 (1928) (Holmes, J., dissenting). 

24 The amount of money, and the number of people potentially involved, 
are not inconsiderable. Although the appellees do not agree, the Secretary 
estimates that the annual cost of implementing the District Court's order 
nationwide would approximate $30 million. Reply Memorandum for Ap- 
pellant 3. In 1979, a total of almost 2.2 million people were receiving 
SSI benefits for disabilities, an increase of over 900,000 from January 1974. 
See Social Security Bulletin 49 (Table M-24) (June 1979). Further, of 
all the disabled adults who applied for benefits between January 1974 and 
July 1975, 1.1% were denied eligibility by reason of their residence in a 
public institution. See S. Rep. No. 95-1312, p. 7 (table) (1978). 



240 OCTOBER TERM, 1980 

POWELL, J., dissenting 450 U.S. 

a statutory classification developed to further legitimate goals 
of one welfare program to another welfare program serving 
entirely different needs. The result is an exclusion of wholly 
dependent people from minimal benefits, serving no Gov- 
ernment interest. This irrational classification violates the 
equal protection component of the Due Process Clause of the 
Fifth Amendment. 

I 

The Supplemental Security Income (SSI) program is a 
comprehensive federal program of minimal cash welfare ben- 
efits for the indigent blind, aged, and disabled. 86 Stat. 1465, 
42 U. S. C. 1381 et seq. See generally Califano v. Azna- 
vorian, 439 TJ. S. 170, 171 (1978). Section 1611 (e)(l)(A) 
of the Act, 42 U. S. C. 1382 (e)(l)(A), operates to reduce 
substantially, to $25 per month, the SSI benefits available to 
otherwise eligible persons who reside in public institutions. 
The reason for this reduction of benefit is understandable : 

"For these people most subsistence needs are met by the 
institution and full benefits are not needed. Some pay- 
ment to these people, though, would be needed to enable 
them to purchase small comfort items not supplied by 
the institution." H. R. Rep. No. 92-231, p. 150 (1971). 

See also S. Rep. No. 92-1230, p. 386 (1972). This comfort 
allowance is provided to institution residents only if the 
qualified person resides in a public hospital or institution that 
receives Medicaid funds on his behalf. 42 U. S. C. 1382 
(e)(l)(B). Thus, no comfort allowance will be paid to an 
individual unless the form of institutionalized treatment he 
receives is compensable under the separate Medicaid program. 
Appellees are indigent people disabled by mental illness, 
and thus otherwise are eligible for SSI payments under 42 
U. S. C. 1382c(a)(3)(A), (C). As residents of public 
mental institutions between the ages of 21 and 65, how- 
ever, they are ineligible to receive Medicaid benefits for their 



SCHWEIKER v. WILSON 241 

221 POWELL, J. ; dissenting 

treatment. 1396a (a)(17)(B). 1 For this reason, and none 
other, appellees may not receive the reduced monthly SSI 
payments available to inmates of other medical institutions, 
including patients in public medical hospitals and private 
mental institutions. 2 

The refusal to pay for treatment in public mental institu- 
tions has a lengthy history in the development of the federal 
medical assistance programs. See Legion v. Richardson, 354 
F. Supp. 456 (SDNY), summarily aff'd sub nom. Legion v. 
Weinberger, 414 II. S. 1058 (1973). Initially, Congress 
broadly refused federal aid to individuals diagnosed as men- 
tally ill, ch. 809, 303 (a), 343 (a), 351, 64 Stat. 549, 554, 
557-558. Subsequent enactments, however, have extended 
Medicaid coverage to treatment of mental illness in public 
or private medical hospitals or nursing homes, 42 U. S. C. 
1396d (a)(l), (4) (1976 ed. and Supp. Ill), and to treat- 
ment of mental illness of those under 21 and 65 or over in 
public mental institutions, 1396d (a) (14), (16). Moreover, 
Congress has defined "public institution" not to include a 
publicly operated community residence center serving no 
more than 16 residents. 1382 (e)(l)(C). Thus, federal 
medical benefits have been extended to the mentally ill for 

1 Other classes of institutionalized people denied the reduced SSI allow- 
ance include patients in tubercular institutions and prison inmates. 

2 The Court too quickly dispatches the argument that 1611 (e) classi- 
fies on the basis of mental illness. While it is true that not all mentally 
ill people are denied the benefit, and that some people denied the benefit 
are not mentally ill, it is inescapable that appellees are denied the benefit 
because they are patients in mental institutions. Only the mentally ill 
are treated in mental institutions. While I would agree that there is no 
indication that Congress intended to punish or slight the mentally ill, the 
history of Medicaid demonstrates Congress' disinclination to involve the 
Federal Government in state treatment of mental illness in public institu- 
tions. See infra, at this page and 242. Because I find the classification 
irrational, I do not reach the question whether classifications drawn in part 
on the basis of mental health require heightened scrutiny as appellees 
suggest. 



242 OCTOBER TERM, 1980 

POWELL, J., dissenting 450 U.S. 

treatment in various contexts. The residual exclusion of 
large state institutions for the mentally ill from federal finan- 
cial assistance rests on two related principles: States tradi- 
tionally have assumed the burdens of administering this form 
of care, and the Federal Government has long distrusted the 
economic and therapeutic efficiency of large mental institu- 
tions. See S. Rep. No. 404, 89th Cong., 1st Sess., 20 (1965). 
See also 42 TL S. C. 1396d (h)(l)(B) (persons under 21 re- 
ceive Medicaid benefits for treatment in mental institutions 
only when standards of utility are met). 

The legislative history of 1611 (e) sheds no light on why 
Congress made the exclusion from reduced SSI benefits coex- 
tensive with the exclusion from Medicaid payments. 3 The 
Secretary argues that Congress might rationally have con- 
cluded that the States have the primary responsibility for 
making payments of comfort allowances to appellees, because 
they already bear the responsibility for paying for their treat- 
ment. Brief for Appellant 27. In accepting this justifica- 
tion, the Court adds that whether the States do, ever have, or 
ever will provide this benefit to residents of large mental in- 
stitutions is irrelevant to the rationality of Congress 7 sup- 
posed judgment. Ante, at 237, n. 20. 

II 
A 

Social and economic legislation that does not employ sus- 
pect classifications or impinge on fundamental rights must 
be upheld under the equal protection component of the Fifth 
Amendment when the legislative means are rationally related 
to a legitimate Government purpose. U. S. Railroad Retire- 
merit Bd. v. Fritz, 449 U. S. 166 (1980) . See San Antonio In- 

8 The only indication of congressional intent states: "No assistance 
benefits will be paid to an individual in a penal institution." H. R. Rep. 
No. 92-231, p. 150 (1971). A mental hospital is not a penal institution. 
Neither the Secretary nor the Court argues that the exclusion of appellees 
from the comfort allowance rationally furthers this purpose. 



SCHWEIKER v. WILSON 243 

221 POWELL, J., dissenting 

pendent School District v. Rodriguez, 411 U. S. 1, 17 (1973) ; 
Dandridge v. Williams, 397 U. S. 471 (1970). This simply 
stated test holds two firmly established principles in tension. 
The Court must not substitute its view of wise or fair legisla- 
tive policy for that of the duly elected representatives of the 
people, Vance v. Bradley, 440 U. S. 93, 109 (1979); Dan- 
dridge, supra, at 485-486, but the equal protection require- 
ment does place a substantive limit on legislative power. At 
a minimum, the legislature cannot arbitrarily discriminate 
among citizens. E. g., Johnson v. Robison, 415 U. S. 361, 
374-375 (1974) ; James v. Strange, 407 U. S. 128, 140 (1972) ; 
Weber v. Aetna Casualty & Surety Co., 406 U. S. 164, 175 
(1972). Enforcing this prohibition while avoiding unwar- 
ranted incursions on the legislative power presents a difficult 
task. No bright line divides the merely foolish from the ar- 
bitrary law. 4 Given this difficulty, legislation properly enjoys 
a presumption of rationality, which is particularly strong for 
welfare legislation where the apportionment of scarce benefits 
in accordance with complex criteria requires painful but un- 
avoidable line-drawing. Mathews v. De Castro, 429 U. S. 
181, 185 (1976). 

The deference to which legislative accommodation of con- 
flicting interests is entitled rests in part upon the principle 
that the political process of our majoritarian democracy re- 
sponds to the wishes of the people. Accordingly, an impor- 
tant touchstone for equal protection review of statutes is how 
readily a policy can be discerned which the legislature in- 



4 The Court has employed numerous formulations for the "rational 
basis" test. U. S. Railroad Retirement Bd. v. Fritz, 449 U. S. 166, 
176-177, n. 10 (1980). Members of the Court continue to hold divergent 
views on the clarity with which a legislative purpose must appear, see id., 
at 180-181 (STEVENS, J., concurring in judgment); id., at 187-188 
(BRENNAN, J., dissenting), and about the degree of deference afforded the 
legislature in suiting means to ends, compare Lindsley v. Natural Carbonic 
Gas Co., 220 U. S. 61, 78-79 (1911), with F. ' 8. Royster Guano Co. v. 
Virginia, 253 U. S. 412, 415 (1920). 



244 OCTOBER TERM, 1980 

, J., dissenting 450 U.S. 



tended to serve. See, 6. g., U. S. Dept. of Agriculture v. 
Moreno, 413 U. S. 528, 536-538 (1973) ; McGinnis v. Royster, 
410 U. S. 263, 270 (1973). When a legitimate purpose for 
a statute appears in the legislative history or is implicit in 
the statutory scheme itself, a court has some assurance that 
the legislature has made a conscious policy choice. Our dem- 
ocratic system requires that legislation intended to serve a 
discernible purpose receive the most respectful deference. 
See Harris v. McRae, 448 U. S. 297 (1980); Maker v. Roe, 
432 U. S. 464, 479 (1977); Weinberger v. Salfi, 422 U. S. 749 
(1975). Yet, the question of whether a statutory classifica- 
tion discriminates arbitrarily cannot be divorced from whether 
it was enacted to serve an identifiable purpose. When a leg- 
islative purpose can be suggested only by the ingenuity of a 
government lawyer litigating the constitutionality of a stat- 
ute, a reviewing court may be presented not so much with a 
legislative policy choice as its absence. 5 

In my view, the Court should receive with some skepticism 
post hoc hypotheses about legislative purpose, unsupported 
by the legislative history. 6 When no indication of legislative 



5 Congress' failure to make policy judgments can distort our system of 
separation of powers by encouraging other branches to make essentially 
legislative decisions. See Cannon v. University of Chicago, 441 U. S. 677, 
743 (1979) (POWELL, J , dissenting) . 

6 Some of our cases suggest that the actual purpose of a statute is 
irrelevant, Flemming v. Nestor, 363 TT. S. 603, 612 (1960), and that the 
statute must be upheld "if any state of facts reasonably may be con- 
ceived to justify" its discrimination, McGowan v. Maryland, 366 U. S. 
420, 426 (1961). Although these cases preserve an important caution, 
they do not describe the importance of actual legislative purpose in our 
analysis. We recognize that a legislative body rarely acts with a single 
mind and that compromises blur purpose. Therefore, it is appropriate 
to accord some deference to the executive's view of legislative intent, as 
similarly we accord deference to the consistent construction of a statute 
by the administrative agency charged with its enforcement. E. g., Udcdl 
v. Tollman, 380 U. S. 1, 16 (1965). Ascertainment of actual purpose to 
the extent feasible, however, remains an essential step in equal protection. 



SCHWEIKER v. WILSON 246 

221 POWELL, J., dissenting 

purpose appears other than the current position of the Secre- 
tary, the Court should require that the classification bear a 
"fair and substantial relation" to the asserted purpose. See 
F. S. Royster Guano Co. v. Virginia, 253 U. S. 412, 415 (1920). 
This marginally more demanding scrutiny indirectly would 
test the plausibility of the tendered purpose, and preserve 
equal protection review as something more than "a mere tau- 
tological recognition of the fact that Congress did what it in- 
tended to do." Fritz, supra, at 180 (STEVENS, J., concurring 
in judgment). 

B 

Neither the structure of 1611 nor its legislative history 
identifies or even suggests any policy plausibly intended to 
be served by denying appellees the small SSI allowance. As 
noted above, the only purpose identified in the House and 
Senate Reports is the irrelevant goal of depriving inmates 
of penal institutions of all benefits. See n. 3, supra. The 
structure of the statute offers no guidance as to purpose be- 
cause 1611 (e) is drawn in reference to the policies of 
Medicaid rather than to the policies of SSI. By mechani- 
cally applying the criteria developed for Medicaid, Congress 
appears to have avoided considering what criteria would be 
appropriate for deciding in which public institutions a per- 
son can reside and still be eligible for some SSI payment. 
The importation of eligibility criteria from one statute to 
another creates significant risks that irrational distinctions 
will be made between equally needy people. See U. S. Dept. 
oj Agriculture v. Murry, 413 U. S. 508, 514 (1973); Medora 
v. Colautti, 602 F. 2d 1149 (CAS 1979). 

The Secretary argues, and the Court agrees, that the ex- 
clusion "is rationally related to the legitimate legislative 
desire to avoid spending federal resources on behalf of in- 
dividuals whose care and treatment are being fully provided 
for by state and local government units." Brief for Appel- 
lant 27. The Secretary does not argue that appellees are not 



246 OCTOBER TERM, 1980 

POWELL, J., dissenting 450 U.S. 

in present need of the comfort allowance ; indeed, he concedes 
that "the statutory classification does not exclude [appellees] 
because they were thought to be less needy." Id., at 32/ 
Nor does the Secretary suggest that because a State provides 
health care and the necessities of life to inmates of mental 
hospitals, the State also will provide the inmate with a com- 
fort allowance. Indeed, the probability that a State will pay 
a patient a comfort allowance does not increase when the 
Federal Government refuses to relieve it of part of the cost of 
the patient's medical care. The Court apparently recognizes 
this, as it states that whether or not a State actually provides 
a comfort allowance is irrelevant. Ante, at 237, n. 20. Ap- 
pellees simply are denied a benefit provided to other institu- 
tionalized, disabled patients. 

But, it is argued, Congress rationally could make the judg- 
ment that the States should bear the responsibility for any 
comfort allowance, because they already have the responsi- 
bility for providing treatment and minimal care. There is 
no logical link, however, between these two responsibilities. 
See U. S. Dept. of Agriculture v. Murry, supra. Residence 
in a public mental hospital is rationally related to whether 
the Congress should pay for the patient's treatment. Legion 
v. Richardson, 354 F. Supp. 456 (SDNY), summarily aff'd 
sub nom. Legion v. Weinberger, 414 U. S. 1058 (1973). The 
judgment whether the Federal Government should subsidize 
care for the mentally ill in large public institutions involves 
difficult questions of medical and economic policy. Supra, at 
241-242. But residence in a public mental institution, as op- 
posed to residence in a state medical hospital or a private 
mental hospital, bears no relation to any policy of the SSI 
program. The monthly $25 allowance pays for small per- 
sonal expenses, beyond the minimal care and treatment pro- 

7 This concession makes it difficult to accept the Court's conclusion that 
Congress rationally could have decided that "Medicaid recipients in public 
institutions ... are the most needy and the most deserving of the small 
monthly supplement." Ante, at 239. 



SCHWEIKER v. WILSON 247 

221 POWELL, J., dissenting 

vided by Medicaid or "other programs." H. R. Rep. No. 96- 
451, pt. 1, p. 153 (1979). If SSI pays a cash benefit relating 
to personal needs other than maintenance and medical care, it 
is irrelevant whether the State or the Federal Government is 
paying for the maintenance and medical care.; the patients' 
need remains the same, the likelihood that the policies of SSI 
will be fulfilled remains the same. 

I conclude that Congress had no rational reason for refus- 
ing to pay a comfort allowance to appellees, while paying it 
to numerous otherwise identically situated disabled indigents. 
This unexplained difference in treatment must have been a 
legislative oversight. I therefore dissent. 



248 OCTOBER TERM, 1980 

Syllabus 450 U.S. 

TEXAS DEPARTMENT OF COMMUNITY AFFAIRS v. 

BURDINE 

CERTIORATE! TO THE UNITED STATES COURT OF APPEALS FOR THE 

FIFTH CIRCUIT 

No. 79-1764. Argued December 9, 198Q -Decided March 4, 1981 

Respondent filed suit in Federal District Court, alleging, inter alia, that 
her termination of employment with petitioner was predicated on gender 
discrimination in violation of Title VII of the Civil Bights Act of 1964. 
The District Court found that the testimony for petitioner sufficiently 
had rebutted respondent's allegation of gender discrimination in the 
decision to terminate her employment. The Court of Appeals reversed 
this finding, holding that the defendant in a Title VII case bears the 
burden of proving by a preponderance of the evidence the existence of 
legitimate, nondiscriminatory reasons for the employment action and also 
must prove by objective evidence that those hired were better qualified 
than the plaintiff, and that the testimony for petitioner did not carry 
either of these burdens. 

Held: When the plaintiff in a Title VII case has proved a prima facie 
case of employment discrimination, the defendant bears only the burden 
of explaining clearly the nondiscriminatory reasons for its actions. Pp. 
252-260. 

(a) As set forth in McDonnell Douglas Corp. v. Green, 411 U. S. 
792, the basic allocation of burdens and order of presentation of proof 
in a Title VII case, is as follows. First, the plaintiff has the burden of 
proving by the preponderance of the evidence a prima facie case of 
discrimination. Second, if the plaintiff succeeds in proving the prima 
facie case, the burden shifts to the defendant "to articulate some legit- 
imate, nondiscnminatory reason for the employee's rejection." Id., at 
802. Third, should the defendant carry this burden, the plaintiff must 
then have an opportunity to prove by a preponderance of the evidence 
that the legitimate reasons offered by the defendant were not its true 
reasons, but were a pretext for discrimination. The defendant need not 
persuade the court that it was actually motivated by the proffered 
reasons, but it is sufficient if the defendant's evidence raises a genuine 
issue of fact as to whether it discriminated against the plaintiff. To 
accomplish this, the defendant must clearly set forth, through the in- 
troduction of admissible evidence, the reasons for the plaintiff's rejec- 
tion. Pp. 252-256. 



TEXAS DEPT. OF COMMUNITY AFFAIRS v. BURDINE 249 
248 Opinion of the Court 

(b) The Court of Appeals erred by requiring petitioner to prove by 
a preponderance of the evidence the existence of nondiscriminatory rea- 
sons for terminating respondent. By doing this, the court required 
much more than is required by McDonnell Douglas, supra, and its 
progency: it placed on petitioner the burden of persuading the court 
that, it had convincing, objective reasons for preferring the chosen 
applicant above the respondent Limiting the defendant's evidentiary 
obligation to a burden of production will not unduly hinder the plain- 
tiff Pp. 256-258. 

(c) The Court of Appeals also erred in requiring petitioner to prove 
by objective evidence that the person hired was more qualified than 
respondent. It is the plaintiff's task to demonstrate that similarly 
situated employees were not treated equally, but the Court of Appeals* 
rule would require the employer to show that the plaintiff's objective 
qualifications were inferior to those of the person selected, and if it 
cannot, a court would, in effect, conclude that it has discriminated. 
The Court of Appeals' views can also be read as requiring the em- 
ployer to hire the minority or female applicant whenever that person's 
objective qualifications were equal to those of a white male applicant. 
But Title VII does not obligate an employer to accord this preference. 
Rather, the employer has discretion to choose among equally qualified 
candidates, provided the decision is not based upon unlawful criteria. 
Pp. 258-259. 

608 F. 2d 563, vacated and remanded. 

POWELL, J., delivered the opinion for a unanimous Court. 

Gregory Wilson, Assistant Attorney General of Texas, 
argued the cause pro hac vice for petitioner. With him on 
the brief were Mark White, Attorney General, John W. 
Fainter, Jr., First Assistant Attorney General, Lonny F. 
Zwiener, Assistant Attorney General, and Paul R. Gavia. 

Hubert L. Gill argued the cause and filed a brief for 
respondent.* 

JUSTICE POWELL, delivered the opinion of the Court. 

This case requires us to address again the nature of the 
evidentiary burden placed upon the defendant in an em- 

^Robert E. Williams and Douglas S. McDowell filed a brief for the 
Equal Employment Advisory Council as amicus curiae urging reversal. 



260 OCTOBER TERM, 1980 

Opinion of the Court 460 U.S. 

ployment discrimination suit brought under Title VII of the 
Civil Rights Act of 1964, 42 U. S. C. 2000e et seq. The nar- 
row question presented is whether, after the plaintiff has 
proved a prima facie case of discriminatory treatment, the 
burden shifts to the defendant to persuade the court by a 
preponderance of the evidence that legitimate, nondiscrimina- 
tory reasons for the challenged employment action existed. 



Petitioner, the Texas Department of Community Affairs 
(TDCA), hired respondent, a female, in January 1972, for 
the position of accounting clerk in the Public Service Careers 
Division (PSC). PSC provided training and employment 
opportunities in the public sector for unskilled workers. 
When hired, respondent possessed several years' experience in 
employment training. She was promoted to Field Services 
Coordinator in July 1972. Her supervisor resigned in No- 
vember of that year, and respondent was assigned additional 
duties. Although she applied for the supervisor's position of 
Project Director, the position remained vacant for six months. 

PSC was funded completely by the United States Depart- 
ment of Labor. The Department was seriously concerned 
about inefficiencies at PSC. 1 In February 1973, the Depart- 
ment notified the Executive Director of TDCA, B. R, Fuller, 
that it would terminate PSC the following month. TDCA 
officials, assisted by respondent, persuaded the Department to 
continue funding the program, conditioned upon PSC's re- 
forming its operations. Among the agreed conditions were 
the appointment of a permanent Project Director and a com- 
plete reorganization of the PSC staff. 2 

After consulting with personnel within TDCA, Fuller hired 

1 Among the problems identified were overstaffing, lack of fiscal control, 
poor bookkeeping, lack of communication among PSC staff, and the lack 
of a full-time Project Director. Letter of March 20, 1973, from Charles 
Johnson to B. R. Fuller, reprinted in App. 38-40. 

2 SeewZ v at 39. 



TEXAS DEPT. OF COMMUNITY AFFAIRS v. BURDINE 251 
248 Opinion of the Court 

a male from another division of the agency as Project Direc- 
tor. In reducing the PSC staff, he fired respondent along 
with two other employees, and retained another male, Walz, as 
the only professional employee in the division. It is undis- 
puted that respondent had maintained her application for the 
position of Project Director and had requested to remain with 
TDCA. Respondent soon was rehired by TDCA and as- 
signed to another division of the agency. She received the 
exact salary paid to the Project Director at PSC, and the sub- 
sequent promotions she has received have kept her salary and 
responsibility commensurate with what she would have re- 
ceived had she been appointed Project Director. 

Respondent filed this suit in the United States District 
Court for the Western District of Texas. She alleged that 
the failure to promote and the subsequent decision to ter- 
minate her had been predicated on gender discrimination in 
violation of Title VII. After a bench trial, the District Court 
held that neither decision was based on gender discrimination. 
The court relied on the testimony of Fuller that the employ- 
ment decisions necessitated by the commands of the Depart- 
ment of Labor were based on consultation among trusted 
advisers and a nondiscriminatory evaluation of the relative 
qualifications of the individuals involved. He testified that 
the three individuals terminated did not work well together, 
and that TDCA thought that eliminating this problem would 
improve PSC's efficiency. The court accepted this explana- 
tion as rational and, in effect, found no evidence that the 
decisions not to promote and to terminate respondent were 
prompted by gender discrimination. 

The Court of Appeals for the Fifth Circuit reversed in part. 
608 F. 2d 563 (1979). The court held that the District 
Court's "implicit evidentiary finding" that the male hired as 
Project Director was better qualified for that position than 
respondent was not clearly erroneous. Accordingly, the court 
affirmed the District Court's finding that respondent was not 
discriminated against when she was not promoted. The 



252 OCTOBER TERM, 1980 

Opinion of the Court 460 TJ. S. 

Court of Appeals, however, reversed the District Court's find- 
ing that Fuller's testimony sufficiently had rebutted respond- 
ent's prima facie case of gender discrimination in the decision 
to terminate her employment at PSC. The court reaffirmed 
its previously announced views that the defendant in a Title 
VII case bears the burden of proving by a preponderance of the 
evidence the existence of legitimate nondiscriminatory reasons 
for the employment action and that the defendant also must 
prove by objective evidence that those hired or promoted were 
better qualified than the plaintiff. The court found that 
Fuller's testimony did not carry either of these evidentiary 
burdens. It, therefore, reversed the judgment of the District 
Court and remanded the case for computation of backpay. 8 
Because the decision of the Court of Appeals as to the bur- 
den of proof borne by the defendant conflicts with interpreta- 
tions of our precedents adopted by other Courts of Appeals, 4 
we granted certiorarL 447 U. S. 920 (1980). We now vacate 
the Fifth Circuit's decision and remand for application of the 
correct standard. 

n 

In McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973), 
we set forth the basic allocation of burdens and order of pres- 
entation of proof in a Title VII case alleging discriminatory 
treatment. 5 First, the plaintiff has the burden of proving by 



3 The Court of Appeals also vacated the District Court's judgment that 
petitioner did not violate Title VIFs equal pay provision, 42 U. S. C. 
2000e-2 (h), but that decision is not challenged here. 

* See, e. g., Lieberman v. Gant, 630 F. 2d 60 (CA2 1980) ; Jackson v. 
U. S. Steel Corp., 624 F. 2d 436 (CAS 1980) ; Ambush v. Montgomery 
County Government, 22 FEP Cases 1101 (CA4 1980) ; Loeb v. Textron, 
Inc., 600 F. 2d 1003 (CA1 1979). But see Vaughn v. Westinghouse Elec. 
Corp., 620 F. 2d 655 (CAS 1980), cert, pending, No. 80-276. 

5 We have recognized that the factual issues, and therefore the character 
of the evidence presented, differ when the plaintiff claims that a facially 
neutral employment policy has a discriminatory impact on protected 
classes. See McDonnell Douglas, 411 U. S., at 802, n. 14; Teamsters v. 
United States, 431 U. S. 324, 335-336, and n. 15 (1977). 



TEXAS DEFT. OP CO3V1MUNITY AFFAIRS v. BURDINE 253 
248 Opinion of the Court 

the preponderance of the evidence a prima facie case of dis- 
crimination. Second, if the plaintiff succeeds in proving the 
prima facie case, the burden shifts to the defendant "to artic- 
ulate some legitimate, nondiscriminatory reason for the em- 
ployee's rejection." Id., at 802. Third, should the defendant 
carry this burden, the plaintiff must then have an opportunity 
to prove by a preponderance of the evidence that the legiti- 
mate reasons offered by the defendant were not its true 
reasons, but were a pretext for discrimination. Id., at 804. 

The nature of the burden that shifts to the defendant 
should be understood in light of the plaintiff's ultimate and 
intermediate burdens. The ultimate burden of persuading 
the trier of fact that the defendant intentionally discriminated 
against the plaintiff remains at all times with the plaintiff. 
See Board of Trustees of Keene State College v. Sweeney, 439 
TJ. S. 24, 25, n. 2 (1978) ; id., at 29 (STEVENS, J., dissenting). 
See generally 9 J. Wigmore, Evidence 2489 (3d ed. 1940) 
(the burden of persuasion "never shifts")- The McDonnell 
Douglas division of intermediate evidentiary burdens serves to 
bring the litigants and the court expeditiously and fairly to 
this ultimate question. 

The burden of establishing a prima facie case of disparate 
treatment is not onerous. The plaintiff must prove by a 
proponderence of the evidence that she applied for an avail- 
able position for which she was qualified, but was rejected 
under circumstances which give rise to an inference of unlaw- 
ful discrimination. 6 The prima facie case serves an important 

6 In McDonnell Douglas, supra, we described an appropriate model for 
a prima facie case of racial discrimination. The plaintiff must show: 
"(i) that he belongs to a racial minority; (ii) that he applied and was 
qualified for a job for which the employer was seeking applicants; 
(iii) that, despite his qualifications, he was rejected; and (iv) that, after 
his rejection, the position remained open and the employer continued to 
seek applicants from persons of complainant's qualifications." 411 TJ. S., 
at 802. 

We added, however, that this standard is not inflexible, as "[t]he facts 
necessarily will vary in Title VII cases, and the specification above 



254 OCTOBER TERM, 1980 

Opinion of the Court 450 U. S. 

function in the litigation: it eliminates the most common 
nondiscriminatory reasons for the plaintiff's rejection. See 
Teamsters v. United States, 431 U. S. 324, 358, and n. 44 
(1977) . As the Court explained in Furnco Construction Corp. 
v. Waters, 438 U. S. 567, 577 (1978), the prima facie case 
"raises an inference of discrimination only because we presume 
these acts, if otherwise unexplained, are more likely than not 
based on the consideration of impermissible factors." Estab- 
lishment of the prima facie case in effect creates a presump- 
tion that the employer unlawfully discriminated against the 
employee. If the trier of fact believes the plaintiff's evidence, 
and if the employer is silent in the face of the presumption, 
the court must enter judgment for the plaintiff because no 
issue of fact remains in the case. 7 

The burden that shifts to the defendant, therefore, is to 
rebut the presumption of discrimination by producing evi- 
dence that the plaintiff was rejected, or someone else was 
preferred, for a legitimate, nondiscriminatory reason. The de- 
fendant need not persuade the court that it was actually mo- 
tivated by the proffered reasons. See Sweeney, supra, at 25. 
It is sufficient if the defendant's evidence raises a genuine 
issue of fact as to whether it discriminated against the plain- 

of the prima facie proof required from respondent is not necessarily appli- 
cable in every respect in differing factual situations." Id., at 802, n. 13. 

In the instant case, it is not seriously contested that respondent has 
proved a prima facie case. She showed that she was a qualified woman 
who sought an available position, but the position was left open for several 
months before she finally was rejected in favor of a male, Walz, who had 
been under her supervision. 

7 The phrase "prima facie case" not only may denote the establishment 
of a legally mandatory, rebuttable presumption, but also may be used by 
courts to describe the plaintiff's burden of producing enough evidence to 
permit the trier of fact to infer the fact at issue. 9 J. Wigmore, Evidence 
2494 (3d ed. 1940). McDonnell Douglas should have made it apparent 
that in the Title VII context we use "prima facie case" in the former 
sense. 



TEXAS DEPT. OF COMMUNITY AFFAIRS v BURDINE 255 
248 Opinion of the Court 

tiff. 8 To accomplish this, the defendant must clearly set 
forth, through the introduction of admissible evidence, the 
reasons for the plaintiff's rejection. 9 The explanation pro- 
vided must be legally sufficient to justify a judgment for the 
defendant. If the defendant carries this burden of produc- 
tion, the presumption raised by the prima facie case is re- 
butted, 10 and the factual inquiry proceeds to a new level of 
specificity. Placing this burden of production on the defend- 
ant thus serves simultaneously to meet the plaintiff's prima 
facie case by presenting a legitimate reason for the action and 
to frame the factual issue with sufficient clarity so that the 



8 This evidentiary relationship between the presumption created by a 
prima facie case and the consequential burden of production placed on the 
defendant is a traditional feature of the common law. "The word 'pre- 
sumption' properly used refers only to a device for allocating the pro- 
duction burden." F. James & G. Hazard, Civil Procedure 7.9, p. 255 
(2d ed. 1977) (footnote omitted) . See Fed. Rule Evid. 301. See gener- 
ally 9 J. Wigmore, Evidence 2491 (3d ed. 1940) . Cf . J. Maguire, Evi- 
dence, Common Sense and Common Law 185-186 (1947). Usually, as- 
sessing the burden of production helps the judge determine whether the 
litigants have created an issue of fact to be decided by the jury. In a 
Title VII case, the allocation of burdens and the creation of a presumption 
by the establishment of a prima facie case is intended progressively to 
sharpen the inquiry into the elusive factual question of intentional 
discrimination. 

9 An articulation not admitted into evidence will not suffice. Thus, the 
defendant cannot meet its burden merely through an answer to the com- 
plaint or by argument of counsel. 

10 See generally J. Thayer, Preliminary Treatise on Evidence 346 (1898). 
In saying that the presumption drops from the case, we do not imply that 
the trier of fact no longer may consider evidence previously introduced by 
the plaintiff to establish a prima facie case. A satisfactory explanation by 
the defendant destroys the legally mandatory inference of discrimination 
arising from the plaintiff's initial evidence. Nonetheless, this evidence 
and inferences properly drawn therefrom may be considered by the trier 
of fact on the issue of whether the defendant's explanation is pretextuaL 
Indeed, there may be some cases where the plaintiff's initial evidence, com- 
bined with effective cross-examination of the defendant, will suffice to 
discredit the defendant's explanation. 



266 OCTOBER TERM, 1980 

Opinion of the Court 450 TT. 8. 

plaintiff will have a full and fair opportunity to demonstrate 
pretext. The sufficiency of the defendant's evidence should 
be evaluated by the extent to which it fulfills these functions. 
The plaintiff retains the burden of persuasion. She now 
must have the opportunity to demonstrate that the proffered 
reason w* . not the true reason for the employment decision. 
This burden now merges with the ultimate burden of persuad- 
ing the court that she has been the victim of intentional dis- 
crimination. She may succeed in this either directly by per- 
suading the court that a discriminatory reason more likely 
motivated the employer or indirectly by showing that the 
employer's proffered explanation is unworthy of credence. 
See McDonnell Douglas, 411 U. S., at 804-805. 

Ill 

In reversing the judgment of the District Court that the 
discharge of respondent from PSC was unrelated to her sex, 
the Court of Appeals adhered to two rules it had developed 
to elaborate the defendant's burden of proof. First, the de- 
fendant must prove by a preponderence of the evidence that 
legitimate, nondiscriminatory reasons for the discharge existed. 
608 F. 2d, at 567. See Turner v. Texas Instruments, Inc., 555 
F. 2d 1251, 1255 (CA5 1977). Second, to satisfy this burden, 
the defendant "must prove that those he hired . . . were 
somehow better qualified than was plaintiff; in other words, 
comparative evidence is needed." 608 F. 2d, at 567 (empha- 
sis in original). See East v. Romine, Inc., 518 F. 2d 332, 
339-340 (CAS 1975). 

A 

The Court of Appeals has misconstrued the nature of the 
burden that McDonnell Douglas and its progeny place on the 
defendant. See Part II, supra. We stated in Sweeney that 
"the employer's burden is satisfied if he simply 'explains what 
he has done' or 'produc[es] evidence of legitimate nondis- 
criminatory reasons.' " 439 U. S., at 25, n. 2, quoting id., 
at 28, 29 (STEVENS, J., dissenting). It is plain that the Court 



TEXAS DEFT. OP COMMUNITY AFFAIRS v. BURDINE 257 
248 Opinion of the Court 

of Appeals required much more: it placed on the defendant 
the burden of persuading the court that it had convincing, 
objective reasons for preferring the chosen applicant above 
the plaintiff. 11 

The Court of Appeals distinguished Sweeney on the ground 
that the case held only that the defendant did not have the 
burden of proving the absence of discriminatory intent. But 
this distinction slights the rationale of Sweeney and of our 
other cases. We have stated consistently that the employee's 
prima facie case of discrimination will be rebutted if the em- 
ployer articulates lawful reasons for the action; that is, to 
satisfy this intermediate burden, the employer need only pro- 
duce admissible evidence which would allow the trier of fact 
rationally to conclude that the employment decision had not 
been motivated by discriminatory animus. The Court of Ap- 
peals would require the defendant to introduce evidence 
which, in the absence of any evidence of pretext, would 
persuade the trier of fact that the employment action was 
lawful. This exceeds what properly can be demanded to 
satisfy a burden of production. 

The court placed the burden of persuasion on the defend- 
ant apparently because it feared that "[i]f an employer need 



11 The court reviewed the defendant's evidence and explained its 
deficiency: 

"Defendant failed to introduce comparative factual data concerning 
Burdine and Walz. Fuller merely testified that he discharged and re- 
tained personnel in the spring shakeup at TDCA primarily on the recom- 
mendations of subordinates and that he considered Walz qualified for the 
position he was retained to do. Fuller failed to specify any objective 
criteria on which he based the decision to discharge Burdine and retain 
Walz. He stated only that the action was in the best interest of the 
program and that there had been some friction within the department that 
might be alleviated by Burdine's discharge. Nothing in the record indi- 
cates whether he examined Walz' ability to work well with others. This 
court in East found such unsubstantiated assertions of 'qualification' and 
'prior work record' insufficient absent data that will allow a true com- 
parison of the individuals hired and rejected/ 7 608 F. 2d, at 568. 



258 OCTOBER TERM, 1980 

Opinion of the Court 450 TL S. 

only articulate not prove a legitimate, nondiscriminatory 
reason for his action, he may compose fictitious, but legiti- 
mate, reasons for his actions/' Turner v. Texas Instruments, 
Inc., supra, at 1255 (emphasis in original). We do not be- 
lieve, however, that limiting the defendant's evidentiary obli- 
gation to a burden of production will unduly hinder the plain- 
tiff. First, as noted above, the defendant's explanation of its 
legitimate reasons must be clear and reasonably specific. 
Supra, at 255. See Loeb v. Textron, Inc., 600 F. 2d 1003, 
1011-1012, n. 5 (CA1 1979). This obligation arises both from 
the necessity of rebutting the inference of discrimination aris- 
ing from the prima facie case and from the requirement that 
the plaintiff be afforded "a full and fair opportunity" to 
demonstrate pretext. Second, although the defendant does 
not bear a formal burden of persuasion, the defendant never- 
theless retains an incentive to persuade the trier of fact that 
the employment decision was lawful. Thus, the defendant 
normally will attempt to prove the factual basis for its expla- 
nation. Third, the liberal discovery rules applicable to any 
civil suit in federal court are supplemented in a Title VII suit 
by the plaintiff's access to the Equal Employment Opportunity 
Commission's investigatory files concerning her complaint. 
See EEOC v. Associated Dry Goods Corp., 449 U. S. 590 
(1981). Given these factors, we are unpersuaded that the 
plaintiff will find it particularly difficult to prove that a prof- 
fered explanation lacking a factual basis is a pretext. We 
remain confident that the McDonnell Douglas framework 
permits the plaintiff meriting relief to demonstrate inten- 
tional discrimination. 

B 

The Court of Appeals also erred in requiring the defendant 
to prove by objective evidence that the person hired or 
promoted was more qualified than the plaintiff. McDonnell 
Douglas teaches that it is the plaintiff's task to demonstrate 
that similarly situated employees were not treated equally. 
411 U. S., at 804. The Court of Appeals' rule would require 



TEXAS DEPT. OF COMMUNITY AFFAIRS v. BUKDINE 269 
248 Opinion of the Court 

the employer to show that the plaintiff's objective qualifi- 
cations were inferior to those of the person selected. If 
it cannot, a court would, in effect, conclude that it has 
discriminated. 

The court's procedural rule harbors a substantive error. 
Title VII prohibits all discrimination in employment based 
upon race, sex, and national origin. "The broad, overriding 
interest, shared by employer, employee, and consumer, is effi- 
cient and trustworthy workmanship assured through fair 
and . . . neutral employment and personnel decisions." Mc- 
Donnell Douglas, supra, at 801. Title VII, however, does not 
demand that an employer give preferential treatment to mi- 
norities or women. 42 U. S. C. 2000e-2(j). See Steel- 
workers v. Weber, 443 U. S. 193, 206-206 (1979). The stat- 
ute was not intended to "diminish traditional management 
prerogatives/' Id., at 207. It does not require the employer 
to restructure his employment practices to maximize the num- 
ber of minorities and women hired. Furnco Construction 
Corp. v. Waters, 438 U. S. 567, 577-578 (1978). 

The views of the Court of Appeals can be read, we think, as 
requiring the employer to hire the minority or female appli- 
cant whenever that person's objective qualifications were 
equal to those of a white male applicant. But Title VII does 
not obligate an employer to accord this preference. Rather, 
the employer has discretion to choose among equally quali- 
fied candidates, provided the decision is not based upon un- 
lawful criteria. The fact that a court may think that the 
employer misjudged the qualifications of the applicants does 
not in itself expose him to Title VII liability, although this 
may be probative of whether the employer's reasons are pre- 
texts for discrimination. Loeb v* Textron, Inc., supra, at 
1012, n. 6; see Lieberman v. Gant, 630 F. 2d 60, 65 (CA2 
1980). 

IV 

In summary, the Court of Appeals erred by requiring the 
defendant to prove by a preponderance of the evidence the 



260 OCTOBER TERM, 1980 

Opinion of the Court 450 U. S. 

existence of nondiscriminatory reasons for terminating the 
respondent and that the person retained in her stead had 
superior objective qualifications for the position. 12 When the 
plaintiff has proved a prima facie case of discrimination, the 
defendant bears only the burden of explaining clearly the 
nondiscriminatory reasons for its actions. The judgment of 
the Court of Appeals is vacated, and the case is remanded for 
further proceedings consistent with this opinion. 

It is so ordered. 



12 Because the Court of Appeals applied the wrong legal standard to the 
evidence, we have no occasion to decide whether it erred in not review- 
ing the District Court's finding of no intentional discrimination under 
the "clearly erroneous" standard of Federal Rule of Civil Procedure 52 (a) . 
Addressing this issue in this case would be inappropriate because the 
District Court made no findings on the intermediate questions posed by 
McDonnell Douglas. 



WOOD v. GEORGIA 261 

Syllabus 

WOOD ET AL. v. GEORGIA 

CERTIORARI TO THE COURT OF APPEALS OF GEORGIA 

No. 79-6027. Argued November 4, 1980 Decided March 4, 1981 

Petitioners, former employees of an "adult" movie theater and bookstore, 
were convicted of distributing obscene materials in violation of a 
Georgia statute and received fines and jail sentences but were placed 
on probation on the condition that they make monthly installment pay- 
ments toward the satisfaction of the fines. When petitioners failed to 
make the payments, a probation revocation hearing was held. Petition- 
ers, who had by that time left their jobs in the "adult" establishments, 
offered evidence of their inability to make the payments and stated 
that they had expected their former employer to pay the fines for them. 
When petitioners were unable to make up their arrearages, the Georgia 
trial court denied their motion to modify the probation conditions and 
ordered petitioners to serve the remaining portions of their jail sen- 
tences. After the Georgia Court of Appeals affirmed, this Court granted 
a writ of certiorari to decide whether it is constitutional under the 
Equal Protection Clause to imprison a probationer solely because of his 
inability to make installment payments on fines. 

Held: This is an inappropriate case in which to decide the equal protec- 
tion question. Since the record suggests that petitioners may be in their 
present predicament because of their counsel's divided loyalties, a possi- 
ble due process violation is apparent, and the case is remanded for 
further findings concerning such possible violation. Pp 264r-274. 

(a) The transcript of the revocation hearing shows that petitioners 
understood that their former employer would provide legal assistance if 
they should face legal trouble as a result of their employment, would 
pay any fines, and would post any necessary bonds. Petitioners have 
been represented since the time of their arrest by a single lawyer, who 
was paid by the employer and who posted bonds in this case and paid 
other fines when each of the petitioners was arrested a second time If 
petitioners' counsel was serving the employer's interest in obtaining 
an equal protection ruling that offenders cannot be jailed for failure to 
pay fines that are beyond their means, which could only occur if peti- 
tioners received fines beyond their own means and then risked jail by 
failing to pay, this conflict in goals may have influenced the trial court's 
decisions to impose large fines and to revoke the probations rather than 
modify the conditions thereof. Pp. 264-268. 



262 OCTOBER TERM, 1980 

Opinion of the Court 450 U. S. 

(b) If counsel was influenced in his basic strategic decisions by the 
employer's interest, petitioners' due process right to representation free 
from conflicts of interest was not respected at the revocation hearing, 
or at earlier stages of the proceedings. The possibility of a conflict of 
interest was sufficiently apparent at the time of the revocation hearing 
to impose upon the court a duty to inquire further. If on remand the 
court finds that an actual conflict of interest existed at the time of the 
probation revocation or earlier, and that there was no valid waiver of 
the right to independent counsel, it must hold a new revocation hearing 
untainted by a legal representative serving conflicting interests. Pp. 
268-274. 
150 Ga. App. 582, 258 S. E. 2d 171, vacated and remanded. 

POWELL, J , delivered the opinion of the Court, in which BURGER, C. J , 
and BLACKMTJN, REHNQUIST, and STEVENS, JJ., joined. STEVENS, J., 
filed a concurring opinion, post, p. 274. BRENNAN, J, filed an opinion 
concurring in part and dissenting in part, in which MARSHALL, J., joined, 
post, p. 274. STEWART, J., filed an opinion concurring in part and dis- 
senting in part, post, p. 275. WHITE, J., filed a dissenting opinion, post, 
p. 275. 

Glenn Zell argued the cause and filed a brief for petitioners. 

John W. Dunsmore, Jr., Assistant Attorney General of 
Georgia, argued the cause for respondent. With him on the 
brief were Arthur K. Bolton, Attorney General, Robert S. 
Stubbs II, Executive Assistant Attorney General, Don A. 
Langham, First Assistant Attorney General, and John C. 
Walden, Senior Assistant Attorney General. 

JUSTICE POWELL delivered the opinion of the Court. 

Petitioners in this case are three persons who were convicted 
of distributing obscene materials and sentenced to periods of 
probation on the condition that they make regular installment 
payments toward the satisfaction of substantial fines. Be- 
cause they failed to make these payments, their probations 
were revoked by the Georgia court, and they are now claim- 
ing that these revocations discriminated against them on the 
basis of wealth in violation of the Equal Protection Clause of 
the Fourteenth Amendment. Since the record in this case 



WOOD v. GEORGIA 263 

261 Opinion of the Court 

suggests that petitioners may be in their present predicament 
because of the divided loyalties of their counsel, we have 
concluded that it is inappropriate to reach the merits of this 
difficult equal protection issue. Instead, we remand this case 
for further findings concerning a possible due process violation. 



Petitioners Tante and Allen were working, respectively, as 
the projectionist and ticket taker at the Plaza Theatre in At- 
lanta when they were arrested and charged with two counts of 
distributing obscene materials in violation of Ga. Code 2&- 
2101 (1978). About four months later, petitioner Wood was 
arrested and charged with two violations of the same provision 
after he sold two magazines to a policeman while working at 
the Plaza Adult Bookstore. There is no evidence that any of 
these employees owned an interest in the businesses they 
served or had any managerial responsibilities. 

Tante and Allen were tried together and found guilty on 
both counts by a jury. A separate jury convicted Wood on 
both counts. All three were then sentenced by the same 
judge. Tante and Allen each received a fine of $6,000 and 
two concurrent jail sentences of 12 months, but they were 
allowed immediate probation. Wood received two $5,000 
fines and two consecutive jail sentences of 12 months; he also 
was placed on probation immediately. 

After these convictions were affirmed on appeal, 1 the trial 
court issued orders specifying the terms of probation. These 
required all three petitioners to make installment payments 
on their fines of $500 per month during the course of their 
periods of probation. After three months had elapsed, none 
of the petitioners had made any of the required payments, 
and the county probation officers therefore moved for revoca- 



1 AUen v. State, 144 Ga. App. 233, 240 S E. 2d 754 (1977), cert, denied, 
439 IL S. 899 (1978) ; Wood v. State, 144 Ga. App. 236, 240 S. E. 2d 743 
(1977), cert, denied, 439 IT. S. 899 (1978). 



264 OCTOBER TERM, 1980 

Opinion of the Court 450 U. S. 

tion of their probations. At a hearing on January 26, 1979, 
petitioners admitted that they had failed to make the in- 
stallment payments, but offered convincing evidence of their 
inability to make these payments out of their own earnings. 2 
They also stated that they had expected their employer 3 to 
pay the fines for them. Faced with petitioners' complete fail- 
ure to satisfy a condition of their probations, the court decided 
to revoke these probations unless petitioners made up their 
arrearages within five days. Unable to do so, petitioners 
moved for a modification of the conditions of their proba- 
tions. This motion was denied, and the court ordered peti- 
tioners to serve the remaining portions of their jail sentences. 

II 

After this revocation decision was affirmed by the Georgia 
Court of Appeals, 4 we granted a writ of certiorari to decide a 
question presented by the facts just summarized: whether it 
is constitutional under the Equal Protection Clause to im- 
prison a probationer solely because of his inability to make 
installment payments on fines. 446 TJ. S. 951. On closer in- 
spection, however, the record reveals other facts that make 
this an inappropriate case in which to decide the constitutional 
question. Where, as here, a possible due process violation is 



2 According to their testimony, all of the petitioners had by that time 
left their jobs in the "adult" establishments. Allen testified that her only 
income was $260 per month from unemployment insurance. See Tran- 
script of Revocation Hearing, State Court of Fulton County, Criminal 
Division (Jan, 26, 1979) (hereinafter Tr.), at 7. Tante testified that his 
income as a correction officer was $540 per month. Id., at 35. He had 
been unemployed for eight months before obtaining that job. Id., at 
39-40. Wood testified that he was trying to support a family and earning 
$120 per week working at a truck and trailer rental yard. Id., at 53-54. 

8 The record suggests that the Plaaa Theatre, which employed Tante 
and Allen, and the Plaza Adult Bookstore, which employed Wood, were 
under common ownership. 

4 160 Qa, App. 582, 258 S. E. 2d 171 (1979). 



WOOD v. GEORGIA 266 

261 Opinion of the Court 

apparent on the particular facts of a case, we are empowered 
to consider the due process issue. 5 Moreover, for prudential 
reasons, it is preferable for us to remand for consideration of 
this issue, rather than decide a novel constitutional question 
that may be avoided. Cf. Spector Motor Service, Inc. v. 
McLaughlin, 323 TJ. S. 101, 105 (1944) (broad constitutional 



5 JUSTICE WHITE'S dissenting opinion argues that this Court lacks juris- 
diction to remand this case on due process grounds because, in his view, 
the conflict-of-interest issue has not been properly presented. To be sure, 
it was not raised on appeal below or included as a question in the petition 
for certiorari. These facts merely emphasize, however, why it is appro- 
priate for us to consider the issue. The party who argued the appeal and 
prepared the petition for certiorari was the lawyer on whom the conflict- 
of-interest charge focused. It is unlikely that he would concede that he 
had continued improperly to act as counsel. And certainly the State's 
Solicitor, whose duty it was to support the judgment below, could not be 
expected to do more than call the problem to the attention of the courts, 
as he did. Petitioners were low-level employees, and now appear to be 
indigent. See n. 2, supra. We cannot assume that they, on their own ini- 
tiative, were capable of protecting their interests. 

As indicated, post, at 277-278, n. 1; see also n. 20, infra, it is abundantly 
clear that the possibility of a conflict of interest was pointed out to the 
trial court at the revocation hearing. The State's Solicitor raised the issue 
repeatedly. The State's Brief in Opposition 4, n. 2, again identified the 
apparent conflict. See n. 20, infra. Accordingly, counsel for petitioners 
cannot be heard to complain of any lack of notice. 

In this context, it is appropriate to treat the due process issue as one 
"raised" below, and proceed to consider it here. See Boynton v. Virginia, 
364 TJ. S. 454, 457 (1960) (deciding a case on a statutory issue raised 
below but not raised in this Court). Even if one considers that the 
conflictr-of-interest question was not technically raised below, there is 
ample support for a remand required in the interests of justice. See 28 
U. S. C. 2106 (authorizing this Court to "require such further pro- 
ceedings to be had as may be just under the circumstances") ; R. Stern & 
E. Gressmau, Supreme Court Practice 627, p. 460 (5th ed. 1978) (in 
review of state cases, "the Court doubtless limits its power to notice plain 
error to those situations where it feels the error is so serious as to con- 
stitute a fundamental unfairness in the proceedings"). See also Vachon v. 
New Hampshire, 414 TJ. S. 478 (1974). 



266 OCTOBER TEEM, 1980 

Opinion of the Court 450 U.S. 

questions should be avoided where a case may be decided on 
narrower, statutory grounds on remand). 

Petitioners have been represented since the time of their 
arrests by a single lawyer. The testimony of each petitioner 
at the probation revocation hearing makes it clear that none 
of them ever paid or was expected to pay the lawyer for 
his services. 6 They understood that this legal assistance was 
provided to them by their employer. 7 In fact, the transcript 
of this hearing reveals that legal representation was only one 
aspect of the assistance that was promised to petitioners if 
they should face legal trouble as a result of their employment. 
They were told that their employer also would pay any fines 
and post any necessary bonds, 8 and these promises were 
kept for the most part. In this case itself, as petitioners' 
lawyer stated at oral argument, bonds were posted with funds 
he provided. 9 In addition, when each of the petitioners was 
arrested a second time, he paid the resulting fines. w All 
aspects of this arrangement were revealed to the court at the 
revocation hearing. 

6 See Tr. 26 (Allen) ; id., at 43 (Tante) ; id., at 63 (Wood). 

iE. g., id., at 42-43 (Tante). 

8 As petitioners' lawyer himself put it: "I want to bring this before the 
Solicitor and the Court that I believe Mrs. Allen told me and she told 
the Probation Officer that she they were told, given information that 
their fine would be paid. The bond would be paid and a lawyer would be 
representing them." Id., at 14. See also id., at 62-63 (Wood) . During 
oral argument in this Court, the lawyer conceded that he had been paid by 
the employer during petitioners' trials. Tr. of Oral Arg. 15-16. He 
indicated that these payments stopped when petitioners went on proba- 
tion and left their jobs with this employer, but he has never dispelled 
the implication that he has an ongoing employment arrangement with the 
employer. 

* Id., at 8. The fact that the employer provided appeal bonds for peti- 
tioners after the probation revocation hearing suggests that his involve- 
ment with the case did not end when petitioners quit work in these 
"adult" establishments. 

Tr. 12, 41, 56-67. These payments took place while the instant cases 
were still on direct appeal. 



WOOD v. GEORGIA - 267 

261 Opinion of the Court 

For some reason, however, the employer declined to provide 
money to pay the fines in the cases presently under review. 11 
Since it was this decision by the employer that placed peti- 
tioners in their present predicament, and since their counsel 
has acted as the agent of the employer and has been paid by 
the employer, the risk of conflict of interest in this situation 
is evident. The fact that the employer chose to refuse pay- 
ment of these fines, even as it 12 paid other fines and paid the 
sums necessary to keep petitioners free on bond in this case, 
suggests the possibility that it was seeking in its own in- 
terest a resolution of the equal protection claim raised here. 
If offenders cannot be jailed for failure to pay fines that are 
beyond their own means, then this operator of "adult" estab- 
lishments may escape the burden of paying the fines imposed 
on its employees when they are arrested for conducting its 
business. To obtain such a ruling, however, it was necessary 
for petitioners to receive fines that were beyond their own 
means and then risk jail by failing to pay. 

Although we cannot be sure that the employer and peti- 
tioners' attorney were seeking to create a test case, there is a 
clear possibility of conflict of interest on these facts. Indica- 
tions of this apparent conflict of interest may be found at 
various stages of the proceedings below. It was conceded at 
oral argument here that petitioners raised no protest about the 



11 Counsel suggested at oral argument that the reason for this decision 
not to pay the fines was a change of ownership. It might also be ex- 
plained by the fact that petitioners were no longer working for the "adult" 
establishments. Neither of these facts suggests, however, that the em- 
ployer had lost interest in the case, since appeal bonds were provided for 
petitioners. Indeed, the providing of these appeal bonds suggests that 
the decision not to pay the fines themselves was a conscious one. And the 
fact that petitioners had left their jobs may have allowed the employer to 
pursue his goals without any concern about losing petitioners' services in 
the event of a probation revocation. 

12 The record does not make clear whether the employer was an in- 
dividual or a corporation, or indeed even identify the employer. 



268 OCTOBER TERM, 1980 

Opinion of the Court 450 U.S. 

size of the fines imposed at the time of sentencing. During 
the three months leading up to the probation revocation hear- 
ing they failed to pay even small amounts toward their fines 
to indicate their good faith. In fact, throughout this period, 
petitioners apparently remained under the impression that as 
promised the fines would be paid by the employer. Even at 
the revocation hearing itself, petitioners attempted to prove 
their inability to make the required payments but failed to 
make a motion for a modification of those requirements. 
That motion was not made until one day before petitioners 
were due to be incarcerated. 13 A review of these facts demon- 
strates that, if petitioners' counsel was serving the employer's 
interest in setting a precedent, this conflict in goals may well 
have influenced the decision of the trial court to impose such 
large fines, as well as the decision to revoke petitioners' 
probations rather than to modify the conditions. 14 

Ill 

Courts and commentators have recognized the inherent dan- 
gers that arise when a criminal defendant is represented by a 



13 Petitioners 1 counsel states that he did attempt to alert the court to 
the problem of petitioners' inability to pay by letter, soon after their pro- 
bations began. But no motion was made. 

14 There is also a danger that petitioners' lawyer was influenced in his 
strategic decisions by other improper considerations. Rather than relying 
solely on the equal protection claims, he could have sought leniency at 
the probation hearing by arguing that the stiff sentences imposed on peti- 
tioners should be modified in light of the employer's unanticipated refusal 
to pay the fines. But this would have required him to dwell on the ap- 
parent bad faith of his own employer, and to emphasize the possibly 
improper arrangement by which he came to represent petitioners. Thus 
it is not correct, as JUSTICE WHITE argues, post, at 281, that the "conflict 
of interests . . . only emerges by assuming that the employer . . . set 
out to construct a constitutional test case." Even if the employer's mo- 
tives were unrelated to its interest in establishing a precedent, its refusal 
to pay the fines put the attorney in a position of conflicting obligations. 



WOOD v. GEORGIA 269 

261 Opinion of the Court 

lawyer hired and paid by a third party, particularly when the 
third party is the operator of the alleged criminal enterprise. 15 
One risk is that the lawyer will,prevent his client from obtain- 
ing leniency by preventing the client from offering testimony 
against his former employer or from taking other actions 
contrary to the employer's interest. 16 Another kind of risk is 



15 As one court has stated: 

"A conflict of interest inheres in every such situation. ... It is in- 
herently wrong to represent both the employer and the employee if the 
employee's interest may, and the public interest will, be advanced by the 
employee's disclosure of his employer's criminal conduct For the same 
reasons, it is also inherently wrong for an attorney who represents only the 
employee to accept a promise to pay from one whose criminal liability 
may turn on the employee's testimony." In re Abrams, 56 N. J. 271, 276, 
266 A. 2d 275, 278 (1970). 

See also In re Investigation Before April 1975 Grand Jury, 174 TJ. S, App. 
D. C. 268, 274, n. 11, 531 F. 2d 600, 606, n. 11 (1976) ; Piritto v. Takifl, 462 
Pa. 511, 341 A. 2d 896 (1975), appeal dism'd and cert, denied, 423 TJ. S. 
1083 (1976) ; ABA Model Code of Professional Responsibility DR 5-107 
(A), (B) (1980); ABA Standards for Criminal Justice 4-3.5 (c) (2d ed. 
1980) ; LowenthaJ, Joint Representation in Criminal Cases: A Critical 
Appraisal, 64 Va. L. Rev. 939, 960-961 (1978). 

16 There are indications in the transcript of the revocation hearing that 
the State had been unable to learn the name of petitioners' employer, and 
that petitioners were concealing its identity. At one point, the Solicitor 
stated: "Mrs. Allen, is it not true each time you were arrested that we 
sought to get your cooperation to find out who is operating these places?" 
Tr. 28. Later, during the Solicitor's cross-examination of Tante, the 
following colloquy took place: 

"Q Mr. Tante, who did you call when you said you called and told 
them to get someone else out there? 

"A I called the secretary of the union first. 

"Q And what about the company? Did you call them? 

"A And the company, I gave notice to whatever his name was. Mis- 
ter what was his name ? 

"MR. ZELL [petitioners' attorney] I'm sorry, I wasn't listening. 

"A The manager of the theatre, Mister I think it was you I told first. 
I said, 'I want to get out of the theatre as soon as possible. In fact, I'd 



270 OCTOBER TERM, 1980 

Opinion of the Court 450 U. S. 

present where, as here, the party paying the fees may have 
had a long-range interest in establishing a legal precedent and 
could do so only if the interests of the defendants themselves 
were sacrificed. 17 As suggested above, the factual setting of 
this case requires the Court to take note of the potential 
unfairness resulting from this particular third-party fee ar- 
rangement. Petitioners were mere employees, performing the 
most routine duties, yet they received heavy fines on the ap- 
parent assumption that their employer would pay them. 
They now face prison terms solely because of the employer's 
failure to pay the fines, having been represented throughout 



like to leave now/ And I said, 'As far as I'm concerned, I'm out, and 
that's it.' 

"Q You called Mr. Zell to tell him to get someone else out there to 
operate the theatre? 

"A No, sir. I called my business secretary at the union, told them I 
wanted out; to find me another job. If they wanted to put a man in there 
send them out. And they informed me to get on out of there that they 
would not send another union man out there. 

"Q But you also talked to someone with the company, you said? 

"A At the time, I did not, sir. I told Mister Mrs. Allen, I said 

"MR. ZELL Hold it. Hold it, Mr. Tante. It's now ten-thirty, Your 
Honor. We're getting into areas that the only question here is violation 
or failure to pay as directed." Id., at 45-46. 

17 The ABA Model Code of Professional Responsibility EC 5-23 (1980) 
states: 

"A person or organization that pays or furnishes lawyers to represent 
others possesses a potential power to exert strong pressures against the 
independent judgment of those lawyers. Some employers may be inter- 
ested in furthering their own economic, political, or social goals without 
regard to the professional responsibility of the lawyer to his individual 
client. Others may be jar more concerned with establishment or extension 
of legal principles than in the immediate protection of the rights of the 
lawyer's individual client. . . . Since a lawyer must always be free to exer- 
cise his professional judgment without regard to the interests or motives of 
a third person, the lawyer who is employed by one to represent another 
must constantly guard against erosion of his professional freedom." (Em- 
phasis added.) 



WOOD v. GEORGIA 271 

261 Opinion of the Court 

by a lawyer hired by that employer. The potential for injus- 
tice in this situation is sufficiently serious to require us to 
consider whether petitioners have been deprived of federal 
rights under the Due Process Clause of the Fourteenth 
Amendment. 

We have held that due process protections apply to parole 
and probation revocations. Gagnon v. Scarpelli, 411 TJ. S. 
778 (1973); Morrissey v. Brewer, 408 U. S. 471 (1972). In 
Scarpelli we adopted a standard for deciding when due process 
requires appointment of counsel for indigent offenders during 
revocation hearings. Recognizing that the "need for counsel 
at revocation hearings derives, not from the invariable attri- 
butes of those hearings, but rather from the peculiarities of 
particular cases/' 411 IT. S., at 789, we left it to the state 
tribunals to identify, on a case-by-case basis, the situations in 
which fundamental fairness requires appointed counsel. 

In the present case, petitioners appeared at the hearing with 
retained counsel, as was their right under Ga. Code 27-2713 
(1978). But, significantly, petitioners would have had a right 
to appointed counsel if they had made the showing of indi- 
gence on which they now rely. Scarpelli established a pre- 
sumption in favor of appointment of counsel in cases where 
the probation or parole violation is a matter of record but 
"there are substantial reasons which justified or mitigated the 
violation and make revocation inappropriate, and . . . the rea- 
sons are complex or otherwise difficult to develop or present." 
411 TJ. S., at 790. This case, where there were assurances 
that the fines would be paid by an unnamed employer, falls 
into that category. 

Where a constitutional right to counsel exists, our Sixth 
Amendment cases hold that there is a correlative right to 
representation that is free from conflicts of interest. E. g., 
Cuyler v. Sullivan, 446 U. S. 335 (1980) ; Holloway v. Arkan- 
sas, 435 U. S. 475, 481 (1978). Here, petitioners were repre- 
sented by their employer's lawyer, who may not have pursued 



272 OCTOBER TERM, 1980 

Opinion of the Court 450 U. S. 

their interests single-mindedly. It was his duty originally at 
sentencing and later at the revocation hearing, to seek to 
convince the court to be lenient. On the record before us, 
we cannot be sure whether counsel was influenced in his basic 
strategic decisions by the interests of the employer who hired 
him. If this was the case, the due process rights of petitioners 
were not respected at the revocation hearing, or at earlier 
stages of the proceedings below. 

It is, however, difficult for this Court to determine whether 
an actual conflict of interest was present, especially without 
the benefit of briefing and argument on this issue. Neverthe- 
less, the record does demonstrate that the possibility of a con- 
flict of interest was sufficiently apparent at the time of the 
revocation hearing to impose upon the court a duty to inquire 
further. 18 The facts outlined above were all made known at 
that time. The court must have known that it had imposed 
disproportionately large fines penalties that almost certainly 
were increased because of an assumption that the employer 
would pay the fines. 19 The court did know that petitioners' 
counsel had been provided by that employer and was pressing 
a constitutional attack rather than making the arguments for 
leniency that might well have resulted in substantial reduc- 
tions in, or deferrals of, the fines. These facts demonstrate con- 
vincingly the duty of the court to recognize the possibility of 
a disqualifying conflict of interest. Any doubt as to whether 
the court should have been aware of the problem is dispelled 

18 JUSTICE WHITE'S dissent states that we have gone beyond the recent 
decision in Cuyler v Sullivan, 446 U. S. 335 (1980). Yet nothing in that 
case rules out the raising of a conflict-of-interest problem that is apparent 
in the record. Moreover, Svllivan mandates a reversal when the trial 
court has failed to make an inquiry even though it "knows or reasonably 
should know that a particular conflict exists." Id., at 347. 

19 Both counsel agreed that, hi light of the size of t^e fines imposed on 
petitioners relatively minor and impecunious participants in the crimi- 
nal enterprises the judge must have assumed that the employer would 
pay. Tr. of Oral Arg. 13, 40, 



WOOD v. GEORGIA 273 

261 Opinion of the Court 

by the fact that the State raised the conflict problem explicitly 
and requested that the court look into it. 20 

For these reasons, we base our decision in this case on due 
process grounds. The judgment below is vacated and the 
case remanded with instructions that it be returned to the 
State Court of Fulton County. That court should hold a 
hearing to determine whether the conflict of interest that this 
record strongly suggests actually existed at the time of the 
probation revocation or earlier. If the court finds that an 
actual conflict of interest existed at that time, and that there 



20 At one point during the discussion of Allen's case, the Solicitor, 
Mr Rhodes, put it this way: 

"MR RHODES: What I'm trying to show is, Your Honor, that she in 
fact that Mr. Zell [the attorney] was hired by someone else. She did not 
make the choice. That they sent Mr. Zell down here to represent her. 
And she may have acquiesced in it, but that she did not employ Mr. Zell 
to represent her. 

"THE COURT: All right. How is that relevant to this issue? 

"MR. RHODES: To what I say, there's a conflict of interest in this 
case. 

"Mr. Zell is representing her employer, and there's two different inter- 
ests there. 

"They had promised this woman that they would pay her fine and they 
would take care of all these expenses. There's a conflict. 

"Mr. Zell's, as I said, his first duty is to the persons that pay him. And 
that's what he's doing. He's trying to take care of than." Tr. 26-27 
(emphasis added). 
See also id., at 14-15. 

As noted in n. 5, supra, the State raised this problem here as an argu- 
ment against a grant of certiorari. The State's Brief in Opposition 4, n. 2, 
stated: 

"During the probation revocation hearing there were several discussions 
between the Court, the Petitioner's [sic] lawyer and the Solicitor con- 
cerning the fact that the Petitioner's [$ic] lawyer also represents the 
Plaza Theater, the theater in which Petitioners Allen and Tante were 
employed. The argument of the Solicitor was that the employer had 
agreed to pay the fines, and now was attempting to get out of paying 
the fines by arguing that there was no agreement, and that Petitioners 
were now indigents . . . ." 



274 OCTOBER TERM, 1980 

Opinion of BRENNAN, J. 450 U.S. 

was no valid waiver of the right to independent counsel, it 
must hold a new revocation hearing that is untainted by a 
legal representative serving conflicting interests. 21 

Vacated and remanded. 

JUSTICE STEVENS, concurring. 

Although I join the Court's opinion, my view that the 
potential conflict of interest disclosed by the record requires 
that the judgment be vacated does not rest on the hypothesis 
that the petitioners' employer may have contrived a test case. 
See ante, at 267-268, 269-270. It rests instead on the likeli- 
hood that the state trial court would have imposed a signifi- 
cantly different sentence if it had not been led to believe that 
the employer would pay the fines. 

Independent counsel for these individuals surely would not 
have permitted the trial judge to impose fines that were mani- 
festly beyond their ability to pay without obtaining an 
enforceable commitment from the employer. But a lawyer 
faithfully representing the interest of the employer surely 
would not make any such commitment gratuitously. The net 
result of the conflicting interests represented by one lawyer is 
a manifestly unfair prison sentence imposed on employees of 
the person who is probably the principal wrongdoer. 

JUSTICE BREWNAN, with whom JUSTICE MARSHALL joins, 
concurring in part and dissenting in part. 

While I agree with the Court that "there is a clear possi- 
bility of conflict of interest" shown on this record, ante, at 267, 

21 Because we are presented here only with the question of petitioners' 
probation revocations, we do not order more sweeping relief, such as va- 
cating petitioners' sentences or reversing their convictions. Such actions 
do, however, remain within the discretion of the trial court upon ap- 
propriate motion. 

There also is the possibility that this relief may be available in habeas 
corpus proceedings, if petitioners can show an actual conflict of interest 
during the trials or at the time of sentencing. 



WOOD v. GEORGIA 275 

261 WHITE, J., dissenting 

and that the Court has the option to remand on this issue, 
I would nevertheless finally dispose of this case. That can be 
done, as JUSTICE WHITE concludes, by reversing the judgment 
of the Georgia Court of Appeals, for the reason that Tate v. 
Short, 401 U. S. 395 (1971), compels that conclusion. I 
would, however, reverse the conviction for distributing obscene 
materials in violation of Ga. Code 26-2101 (1978) under the 
view I have frequently expressed, and to which I adhere, that 
such an obscenity statute is facially unconstitutional. See 
Paris Adult Theatre I v. Slaton, 413 TL S. 49, 73, 113 (1973) 
(BREISTNAN*, J., dissenting) ; McKinney v. Alabama, 424 U. S. 
669, 678 (1976) (separate opinion of BRENNTAN, J.). 

JUSTICE STEWART, concurring in part and dissenting in part. 

In my view the Court is correct in remanding because of the 
"clear possibility of conflict of interest" shown on the record 
in this case. I would, however, go further and reverse the 
convictions themselves, which were for violations of an ob- 
scenity statute. I believe that that statute, Ga. Code 26- 
2101 (1978), is facially unconstitutional. 

JUSTICE WHITE, dissenting. 

The Court's disposition of this case is twice flawed: first, 
there is no jurisdiction to vacate the judgment on the federal 
constitutional ground upon which the Court rests; second, 
the record does not sustain the factual inferences required to 
support the Court's judgment. 

I 

The petition for certiorari presented a single federal ques- 
tion: Does the Equal Protection Clause of the Fourteenth 
Amendment permit a State to revoke an indigenes probation 
because he has failed to make regular payments toward the 
satisfaction of a fine? This issue was properly presented to 
and ruled upon by the Georgia courts. No other federal con- 



276 OCTOBER TERM, 1980 

WHITE, J., dissenting 450 U.S. 

stitutional issue was presented there or brought here. The 
Court, however, disposes of this case on another ground, but a 
ground that also involves a constitutional issue: the possibly 
divided loyalties of petitioners' counsel may have deprived 
petitioners of due process and their constitutional right to 
counsel. Thus, we are to avoid one constitutional issue in 
favor of another, which was not raised by petitioners either 
here or below. I do not believe that this Court has jurisdic- 
tion even to reach this question, nor do I see why we should 
prefer one constitutional issue to another, even if we had the 
jurisdiction. 

The Court, ante, at 273, n. 20, suggests that the conflict-of- 
interest issue was presented here by respondent, the State of 
Georgia. But the State merely argued that petitioners' at- 
torney was also the attorney for petitioners' employer who had 
agreed to pay the fine and who was now seeking to avoid 
payment by arguing petitioners' indigency. Neither here nor 
in the trial court has the State ever suggested that petitioners 
were deprived of due process or raised any other federal con- 
stitutional issue. The State has surely not confessed error or 
given any other indication that it is seeking anything but an 
affirmance of the decision below hardly an appropriate dis- 
position if the State is suggesting that petitioners were denied 
their constitutional right to counsel. Moreover, nowhere in 
the passage of the response cited by the Court are the terms 
"conflict of interest" used, nor is there even a clear suggestion 
made that counsel was acting other than in the interests of 
petitioners in arguing that an indigenes probation cannot be 
revoked for failure to pay a fine. 

However the State's argument here is to be characterized, 
this case comes to us on writ of certiorari to a state court. 
Our jurisdiction, therefore, arises under 28 U. 8. C. 1257 (3) 
and is limited here to federal rights and privileges that have 
been "specially set up or claimed," and upon which there has 
been a final decision by the highest state court in which a 



WOOD v. GEORGIA 277 

261 WHITE, J., dissenting 

decision could be had. The right-to-counsel claim was never 
raised in the state court, nor did the state court ever render 
a decision on the issue: There is, thus, a jurisdictional bar to 
our reaching the issue. Moore v. Illinois, 408 U. S. 786, 799 
(1972) ; Hill v. California, 401 U. S. 797, 805 (1971) ; Cardinale 
v. Louisiana, 394 TJ. S. 437 (1969), and cases cited there. 

It is as clear as could be that no federal constitutiorial claim 
of any kind was made in the state courts with respect to a 
conflict of interest and the adequacy of petitioners 5 counsel. 
At the revocation hearing, petitioners testified that they were 
without funds to pay the fines, and their counsel urged that 
to incarcerate them would violate the Equal Protection Clause 
of the Fourteenth Amendment. On cross-examination, peti- 
tioners indicated that they had been assured by their em- 
ployer that the employer would pay employee fines if they 
were convicted in cases such as this. The State's attorney 
then asserted several times that there was a conflict of inter- 
est because petitioners' counsel also represented petitioners 1 
corporate employer and was being paid by that concern to 
represent petitioners. 1 But far from suggesting that the 



1 The following colloquy, similar to others, took place at one point in the 
revocation hearing: 

"MR. RHODES: Your Honor, I submit that actually what we have 
here is a conflict of interest on Mr. ZelPs part. He's representing the com- 
pany and he's trying to get out of paying this money that these people 
expect that company to pay that money. Mr. Zell is here purporting to 
represent her while he legally represents a company that has promised to 
pay all these expenses and fines for these people. And I would ask the 
Court to look into that and make a determination of that, and if necessary, 
see that these people have Counsel to enforce that agreement between 
that company and these people. 

"THE COURT: State that again now. 

"MR. RHODES: Mr. Zell is here representing Mrs. Allen. Now, Mrs. 
Allen contends that that company promised to pay all this so that she 
wouldn't have to go through all of this. 

"Now they have not done it. 

[Footnote 1 IB continued on p. 78] 



278 OCTOBER TERM, 1980 

WHITE, J., dissenting 450 XT. S. 

alleged conflict was a ground of relief for petitioners, the 
State suggested that petitioners and their counsel had misled 
the court into thinking that the employer would pay the 
fines, and that the employer's undertaking should be enforced 
by sending petitioners "out to the jail for a while," 2 rather than 
permit the employer to renege and free petitioners on equal 
protection grounds. This would convince the employer to 
pay because it would not want other employees to know that 
they would not be taken care of in the event trouble arose. 8 



"And I submit that Mr. Zell represents that company. That he is, his 
first allegiance is to that company, and not to Mrs. Allen. 

"And that there's a conflict of interest, and that this ought to be looked 
into by this Court. 

"THE COURT: You wish to respond? 

"MR. ZELL: I don't think it makes any sense what he's saying but 
I will if the Court wants me to. I don't think I'm required to. 

"THE COURT: I don't know whether there's anything the Court could 
look into. What specifically do you want the Court to look into? 

"MR. RHODES: Mr. Zell is here supposedly representing Mrs. Allen 
He at the same time represents the people who promised to take care of 
these things and to pay these fines. 

"Now those people are not doing it. And they apparently have reneged 
on it at this point. I think if you sent these people out to the jail for a 
while I think they would pay it because they don't want the other em- 
ployees to know that they are not taking care of these things when they 
come up." Transcript of Revocation Hearing (TV.) 14-15. The tran- 
script is an appendix to the response of respondent. 

Other discussions appear in id., at 25-28. 

2 Id., at 15, 

3 The State's position in this regard is clear from its response to the 
petition for certiorari: 

"In fact, Respondent believes that the Petitioners have no intention what- 
soever in paying these fines, as their testimony indicates that they are 
of the opinion that their employers should have paid these fines. The 
Petitioners are thus holding the enforcement of fines as a recognized sen- 
tencing tool a hostage because of their beliefs that others should pay 
their fines for them. By arguing at this time that they are indigent they 
are using this as a shield to hide behind their responsibility to pay a fine, 
which they earlier agreed to pay by virtue of their silence which led the 



wuuu v, LUi,UK<JrJLA 279 

261 WHITE, J., dissenting 

In the course of these arguments, the State never mentioned 
the Federal Constitution. 

Petitioners' attorney in turn responded that although there 
had been an advance arrangement between petitioners and 
their employer that fines would be paid by the latter, the 
employer had not paid, and the only issue was whether peti- 
tioners should go to jail when they were without funds them- 
selves to pay the fines. He urged that jailing them would 
violate the Equal Protection Clause. 4 He also suggested that 
if the asserted conflict of interest raised an ethical problem 
in the mind of the State's attorney, a complaint should be filed 
with the State Bar. 5 

The judge, apparently rejecting the equal protection claim, 
revoked petitioners 7 probation, although petitioners have re- 
mained free on bond pending appeal. The sole issue in the 
Georgia Court of Appeals was whether petitioners had been 
denied the equal protection of the laws. That claim was 
rejected, the judgment of revocation was affirmed, and the 
Georgia Supreme Court denied further review. The equal 
protection issue, as I have said, is the only federal constitu- 
tional issue that has been presented here. 

The Court asserts that "it is appropriate to treat the due 
process issue as one 'raised' below, and proceed to consider it 
here." Ante, at 265, n. 5. However, the Court fails to cite 
any passage from the record in which the alleged conflict of 
interest was presented to the state courts as a problem of con- 
stitutional dimension. The Court relies on 28 U. S. C. 2106, 



sentencing court to conclude that they were able to pay these fines." 
Brief in Opposition 10. 

Elsewhere, the State suggested "that they be put out there in jail and 
start serving . . . that's the only way really I know, to enforce this 
sentence at this point." Tr. 74. 

*Id., at 16-20. 

5 Id., at 27: "I would suggest Mr. Rhodes report this to the State Bar of 
Georgia and be glad at a hearing to testify if there is any impropriety and 
submit to any questions before the State Bar." 



WHITE, J., dissenting 450 TJ. S. 

but that section does not purport to expand the statutory 
limits on the Court's jurisdiction; rather, it relates only to 
the disposition of the case once jurisdiction exists. What 
JUSTICE REHNQUIST wrote in Vachon v. New Hampshire, 414 
U. S. 478, 482 (1974) (dissenting opinion), is equally applica^ 
ble here: 

"A litigant seeking to preserve a constitutional claim 
for review in this Court must not only make clear to the 
lower courts the nature of his claim, but he must also 
make it clear that the claim is constitutionally grounded. 
Bailey v. Anderson, 326 U. S. 203 (1945)." 

Petitioners have done neither; nor has respondent done it for 
them. 

The Court apparently believes that under Cuyler v. Sulli- 
van, 446 U. S. 335 (1980), the possibility of a conflict of in- 
terest of constitutional dimensions should have prompted 
further inquiry by the trial judge. But Cuyler v. Sullivan did 
not purport to give this Court jurisdiction over a claim other- 
wise beyond its reach. Cuyler held only that if a trial court 
"reasonably should know that a particular conflict exists," id., 
at 347, then a failure to initiate an inquiry may constitute a 
Sixth Amendment violation. If this is the case here, then 
petitioners remain free to seek collateral relief in the lower 
courts. 6 



6 This Court's Rule 34.1 (a), the plain-error rule, does not purport to 
authorize the Court to vacate state-court judgments on the ground of a 
"possible" due process or other constitutional violation which the Court, 
sua sponte, has discovered in the record but which was neither raised nor 
decided in the state courts. Where an issue has been properly raised and 
decided in state litigation but not raised here, Rule 34,1 (a) would permit 
us to reach that issue though not presented by the parties. Cf. Boynton 
v. Virginia, 364 II. S. 454, 457 (1960). 

In Vachon v. New Hampshire, 414 U. S. 478 (1974), the Court relied on 
our "plain error" rule to reach an issue not presented in the jurisdictional 
statement. However, appellant there had unsuccessfully argued the 
issue sufficiency of the evidence below and the issue had been addressed 



WOOD v. GEORGIA 281 

261 WHITE, J., dissenting 

A majority of the Court, however, proceeds on the basis 
that it has jurisdiction to address the due process/adequacy- 
of-counsel issue. Accordingly, I proceed on that assumption. 

II 

As I see it, the Court's disposition of the case rests upon 
critical factual assumptions that are not supported by the 
record. Certainly the mere fact that petitioners' counsel was 
paid by their employer does not in itself constitute a conflict 
of interest of constitutional dimension. 7 Indeed, one would 
expect that in the normal course of things the interests of 
petitioners and of their employer would have corresponded 
throughout the proceedings. It would have been just as much 
in the employer's as in the employees' interest to have had 
the employees adjudged innocent. Similarly, assuming that 
the employer had promised to pay whatever fines might be 
levied against the employees, it was in the employer's interest, 
just as it was in their interest, to have these fines set at the 
lowest possible amount. The conflict of interests, therefore, 
only emerges by assuming that the employer, the owner of an 
adult bookstore and a movie theater, set out to construct a 
constitutional test case and the petitioners' counsel repre- 
sented the employer in this regard. Not even a decision to 
pursue a test case, however, would in itself create a conflict 
of interest. One must assume further that it was for the 
sake of this interest that the employer decided not to pay 
the fines and for the sake of this interest of the employer 



by the State Supreme Court. The dissent in Vachon did not contend that 
appellant had failed to raise the issue below; rather, it argued that al- 
though raised, the issue had not been presented to the state courts as a 
"federal constitutional claim." The majority, evidently, thought that it 
had. 

7 Although petitioners' counsel admitted at oral argument that he had 
been paid by petitioners' employer at the time of trial, he indicated that 
the payments from the employer ended at the time petitioners were put 
on probation. Tr. 13-16. 



282 OCTOBER TERM, 1980 

WHITE, J., dissenting 450 U.S. 

that petitioners' attorney did not object to the size of the 
fines or move in timely fashion for a modification of the con- 
ditions of probation. 

I recognize that the Court's conclusion relies only upon the 
"possibility" of this scenario, but I find these assumptions 
implausible and would require a much stronger showing than 
this record reveals before I would speculate on the likelihood 
of such a motive of the employer and the knowing cooperation 
of counsel to this end, let alone dispose of the case on that 
basis. 8 First, since the only submission of petitioners was 
that they should not go to jail for failure to pay their fines, 
even if the court sustained their position, their liability on 
the fine would remain as would that of the employer if it had 
an enforceable obligation to pay. It is, therefore, difficult to 
find any interest that the employer might have in litigating 
a test case on this issue through the Georgia courts and to this 
Court. Second, the record suggests two much more plausible 
explanations of the employer's failure to pay the fines, neither 
of which implies a conflict of interest: The employer may 
have reneged on its promise to pay fines because petitioners 
were no longer working for the employer, or it may have 
reneged because ownership of the establishments changed 



8 Petitioners' attorney also said: "I want the court to know, and Mr. 
Rhodes to know that Fve attempted at least was asked, to get the 
fines paid. And of course, you can see the result of it. 

"I told the three defendants I would represent them to the best of my 
ability, and I've explained this to the defendants, and I would like to make 
an explanation to the court." Id., at 68. 

Interesting also is the following exhange from the cross-examination 
of one of the petitioners: 

"Q Did you select Mr. Zell as your attorney? 

"A Yes, sir. IVe known him a long time and I trust him. And he's 
the only lawyer IVe ever had to have in my life, and yes, sir, I selected 
him." Id., at 42. 

As far as this record reveals, none of the petitioners to this date has com- 
plained about the legal representation. 



WOOD v. GEORGIA 283 

261 WHITE, J., dissenting 

hands. 9 The fact that the employer may have continued to 
meet some of the expenses, but did not pay the substantial 
fines, does not indicate to me that the employer manipulated 
the situation to create a test case; more likely, the employer 
reneged on his promise because, given the change in circum- 
stances of both the employer and the petitioners, the expense 
was simply greater than that which the employer was willing 
to bear at this point. 

If the employer was simply unwilling to pay the fines, then 
the arguments advanced by the attorney may very well have 
been the best and only arguments available to petitioners. 10 
Indeed, the employer having failed to pay, counsel would have 
been derelict not to press the equal protection claim on behalf 
of his indigent clients. Obviously, success on this ground 
would have advantaged petitioners; and I fail to see, as 
apparently the trial court failed to see, Tr. 15, 28, how peti- 
tioners will be constitutionally deprived by assertion of the 
equal protection claim. The fact that petitioners did move, 
although belatedly, for a modification of the conditions of 
parole 11 further indicates that the employer was more in- 

9 There is no indication in the record that the employer owned other 
adult establishments. If, as counsel suggested at oral argument, owner- 
ship has in fact changed hands, then it seems unlikely that the ex-employer 
would continue to be interested in creating and litigating a test case in a 
matter with which he is no longer concerned. 

10 1 note that petitioners argue in their response that the trial court 
was fully aware of their financial situation. Response for Petitioners 2. 
This is amply supported by the record. The Court, therefore, creates 
an artificial issue when it argues that counsel's conflicting loyalties may 
have prevented him from arguing for leniency in light of the employer's 
failure to pay the fines. The point was made repeatedly that these peti- 
tioners were indigent and could not themselves pay. Petitioners* attorney 
conceded that a defendant who has been fined and who himself could pay 
the fine could not hide behind the promise of another that the latter 
would pay. Tr. 69. 

11 The fact that this motion was made and rejected indicates that a 
remand to the trial court to reconsider this issue is not likely to lead to 
a different result. It also suggests that the inadequacy of counsel sug- 



284 OCTOBER TERM, 1980 

WHITE, J., dissenting 450 U.S. 

terested in cutting his costs than creating a test case. 12 On 
this record, therefore, I believe it necessary to reach the sub- 
stantive question that we granted certiorari to resolve. 

Ill 

Although I think that there are circumstances in which a 
State may impose a suitable jail term in lieu of a fine when 
the defendant cannot or will not pay the fine, there are con- 
stitutional limits on those circumstances, and the State of 
Georgia has exceeded the limits in this case. 

In Williams v. Illinois, 399 U. S. 235 (1970), Williams, con- 
victed of petty theft, received the maximum sentence of one 
year's imprisonment and a $500 fine (plus $5 in court costs). 
As permitted by Illinois statute, the judgment provided that 
if, when the one-year sentence expired, Williams did not im- 
mediately pay the fine and court costs, he was to remain in 
jail a length of time sufficient to satisfy the total debt, cal- 
culated at the rate of $5 per day. We held that "the Equal 
Protection Clause of the Fourteenth Amendment requires that 
the statutory ceiling placed on imprisonment for any sub- 
stantive offense be the same for all defendants irrespective of 
their economic status/' Id., at 244. Therefore, the Illinois 
statute as applied to Williams, who was too poor to pay the 
fine, violated the Equal Protection Clause. 

Tate v. Short, 401 U. S. 395 (1971), involved an indigent 
defendant incarcerated for nonpayment of fines imposed for 

gested by the Court amounts to nothing more than his late filing of this 
motion, not a failure to ask for leniency. 

12 Even this statement asserts more than the evidence of record sup- 
ports : other than the assertions of the State's attorney in a colloquy with 
the judge at the revocation hearing, there is no suggestion in this record 
that the employer directed this litigation in any way. The fact that coun- 
sel was paid for some period by the employer does not support an in- 
ference that counsel was representing the interests of the employer rather 
than those of petitioners. See ABA Model Code of Professional Respon- 
sibility, DB, 5-107 (B) (1980). 



WOOD v. GEORGIA 285 

261 WHITE, J., dissenting 

violating traffic ordinances. Under Texas law, traffic offenses 
were punishable only by fines, not imprisonment. When Tate 
could not pay $425 in fines imposed for nine traffic convictions, 
he was jailed pursuant to the provisions of another Texas 
statute and a municipal ordinance that required him to remain 
in jail a sufficient time to satisfy the fines, again calcu- 
lated at the rate of $5 per day. We reversed on the au- 
thority of Williams v. Illinois, saying: "Since Texas has legis- 
lated a 'fines only' policy for traffic offenses, that statutory 
ceiling cannot, consistently with the Equal Protection Clause, 
limit the punishment to payment of the fine if one is able to 
pay it, yet convert the fine into a prison term for an indigent 
defendant without the means to pay his fine." 401 U. S., at 
399. The Court, however, was careful to repeat what it had 
said in Williams: " 'The state is not powerless to enforce 
judgments against those financially unable to pay a fine'" 
and is free to choose other means to effectuate this end. 401 
U. S., at 399. 

In Williams v. Illinois, supra, at 243, the Court empha- 
sized that its holding "does not deal with a judgment of 
confinement for nonpayment of a fine in the familiar pattern 
of alternative sentence of $30 or 30 days." In neither Wil- 
liams nor Tate did it appear that "jail |Vas"| a rational and 
necessary trade-off to punish the individual who possesses no 
accumulated assets . . . since the substitute sentence provision, 
phrased in terms of a judgment collection statute, [did] not 
impose a discretionary jail term as an alternative sentence, 
but rather equate [d] days in jail with a fixed sum." Wil- 
liams v. Illinois, supra, at 265 (Harlan, J., concurring in 
result). As both the Court and Justice Harlan implied, if 
the Court had confronted a legislative scheme that imposed 
alternative sentences, the analysis would have been different. 

Indigency does not insulate those who have violated the 
criminal law from any punishment whatsoever. As I see it, 
if an indigent cannot pay a fine, even in installments, the 



286 OCTOBER TERM, 1980 

WHITE, J., dissenting 450 U.S. 

Equal Protection Clause does not bar the State from specifying 
other punishment, even a jail term, in lieu of the fine. 13 To 
comply with the Equal Protection Clause, however, the State 
must make clear that the specified jail term in such circum- 
stances is essentially a substitute for the fine and serves the 
same purpose of enforcing the particular statute that the 
defendant violated. In both Williams and Tate the State vio- 
lated this principle by speaking inconsistently: In each case, 
the legislature declared its interest in penalizing a particular 
offense to be satisfied by a specified jail term (in Tate, no jail 
term at all) and at the same time subjected the indigent 
offender to a greater term of punishment. 

The incarceration of the petitioners in this case cannot be 
distinguished from that which we found to be unconstitutional 
in Williams and Tate. Here, the State imposed probated 
prison terms and fines, but made installment payment of the 
fines a condition of probation : Had the fines been paid in full 
and other conditions of probation satisfied, there would have 
been no time in jail at all. Thus, the ends of the State's 
criminal justice system did not call for any loss of liberty 
except that incident to probation. 

Under these circumstances, the State's only interest in in- 
carcerating these petitioners for not paying their fines was to 
impose a loss of liberty that would be as efficacious as the 
fines in satisfying the State's interests in enforcing the crimi- 
nal law involved. However, no calculation like that was 
made here. Upon nonpayment, probation was automatically 
revoked and petitioners were sentenced to their full prison 

18 In imposing an alternative sentence the State focuses on the penalty 
appropriate for the particular offense and structures two punishments, 
each tailored to meet the State's ends in responding to the offense com- 
mitted. Such tailoring may consider the financial situation of the de- 
fendant, Williams v. New York, 337 U. S. 241, 246-250 (1949), but it does 
so only in the context of structuring a penalty appropriate to the offense 
committed. 



WOOD v. GEORGIA 287 

261 WHITE, J., dissenting 

terms. 14 There was no attempt to provide, in addition to the 
jail terms for which they were given probation, a term of 
imprisonment that would be a proper substitute for the fines. 
In fact, even at the conclusion of their prison terms, petitioners 
will apparently be liable for the unpaid fines. This is little 
more than imprisonment for failure to pay a fine, without 
regard to the goals of the criminal justice system. As in 
Williams and Tate, the State is speaking inconsistently con- 
cerning the necessity of imprisonment to meet its penal ob- 
jectives; imprisonment of an indigent under these circum- 
stances is constitutionally impermissible. 

This case falls well within the limits of what we meant to 
prohibit when we announced in Tate v. Short, supra, at 398, 
quoting Morris v. Schoonfield, 399 TJ. S. 508, 509 (1970), that 
the " ' Constitution prohibits the State from imposing a fine 
as a sentence and then automatically converting it into a jail 
term solely because the defendant is indigent/ " 

Accordingly, I would reverse the judgment. 



14 As the majority opinion makes clear, the fines were quite heavy, per- 
haps in anticipation of payment by the employer. There was no expecta- 
tion that these defendants, if they performed well on probation, would 
serve any time in jail, let alone a long term. 



288 OCTOBER TERM, 1980 

Syllabus 450 U.S. 

CARTER v. KENTUCKY 

CERTIORAEI TO THE SUPREME COURT OF KENTUCKY 
No. 80-5060 Argued January 14, 1981 Decided March 9, 1981 

At petitioner's criminal trial in a Kentucky court in which no testimony 
was introduced on behalf of the defense, the trial judge refused peti- 
tioner's requested jury instruction that "[t]he [defendant] is not com- 
pelled to testify and the fact that he does not cannot be used as an 
inference of guilt and should not prejudice him in any way." On 
appeal from petitioner's conviction, the Kentucky Supreme Court re- 
jected his argument that the Fifth and Fourteenth Amendments require 
the trial judge to give the requested instruction, holding that such 
instruction would have required the judge to "comment upon" the 
petitioner's failure to testify in violation of a Kentucky statute pro- 
hibiting such a comment. 

Held: Petitioner had a right to the requested instruction under the privi- 
lege against compulsory self-incrimination of the Fifth Amendment as 
made applicable to the States by the Fourteenth Amendment, a state 
trial judge having a constitutional obligation, upon proper request, to 
minimize the danger that the jury will give evidentiary weight to a 
defendant's failure to testify. Pp. 295-305. 

(a) The penalty imposed upon a defendant for the exercise of his 
constitutional privilege not to testify is severe when there is an adverse 
comment on his silence, Griffin v California, 380 II. S. 609, but even 
without adverse comment, a jury, unless instructed otherwise, may well 
draw adverse inferences from a defendant's silence. Instructions to the 
jury on the law are perhaps nowhere more important than in the 
context of the Fifth Amendment privilege against compulsory self- 
incrimination. While no judge can prevent jurors from speculating 
about why a defendant stands mute in the face of a criminal accusa- 
tion, a judge can, and must, if requested to do so, use the unique power 
of the jury instruction to reduce that speculation to a minimum. 
Pp. 299-303. 

(b) Kentucky's interest in protecting the defendant is insufficient 
justification for refusing the requested instruction, since "[i]t would be 
strange indeed to conclude that this cautionary instruction violates the 
very constitutional provision it is intended to protect," Lakeside v. 
Oregon, 435 U. S. 333, 339. The fact that the jury was instructed to 
determine petitioner's guilt "from the evidence alone" does not excuse 



CARTER v. KENTUCKY 289 

288 Opinion of the Court 

the refusal to give the requested instruction, since a jury, not knowing 
the technical meaning of "evidence," can be expected to notice a de- 
fendant's failure to testify, and, without limiting instructions, to specu- 
late about incriminating inferences from a defendant's silence. Nor 
was an instruction that the law presumes a defendant to be innocent 
a substitute for the requested instruction, since it is doubtful that it 
contributed significantly to the jury's proper understanding of peti- 
tioner's failure to testify. And defense counsel's own argument that 
petitioner did not have to take the stand could not have had the 
purging effect that the requested instruction would have had. Pp, 
303-304. 
598 S. W. 2d 763, reversed and remanded. 

STEWART, J , delivered the opinion of the Court, in which BURGER, C. J., 
and BRENNAN, WHITE, MARSHALL, BLACKMTTN, POWELL, and STEVENS, 
JJ., joined. POWELL, J., filed a concurring opinion, post, p. 305. STEVENS, 
J., filed a concurring opinion, m which BRENNAN, J., joined, post, p. 307, 
REHNQUIST, J., filed a dissenting opinion, post, p. 307. 

Kevin Michael McNally argued the cause and filed a brief 
for petitioner. 

Robert V. Bullock, Assistant Attorney General of Kentucky, 
argued the cause for respondent. With him on the brief were 
Steven L. Beshear, Attorney General, and Richard 0. Wyatt, 
Assistant Attorney General. 

JUSTICE STEWART delivered the opinion of the Court. 

In this case a Kentucky criminal trial judge refused a 
defendant's request to give the following jury instruction: 
"The [defendant] is not compelled to testify and the fact that 
he does not cannot be used as an inference of guilt and should 
not prejudice him in any way." The Supreme Court of Ken- 
tucky found no error. 1 We granted certiorari to consider 
the petitioner's contention that a defendant, upon request, 

1 The per curiam memorandum opinion of the Supreme Court of Ken- 
tucky, Carter v. Commonwealth, No. 79-SC-452-MR, May 13, 1980, is 
unreported. But the court's affirmance order is reported in 598 S. W. 2d 
763. 



290 OCTOBER TERM, 1980 

Opinion of the Court 450 U.S, 

has a right to such an instruction under the Fifth and Four- 
teenth Amendments of the Constitution. 449 TJ. S. 819. 2 



In the early morning of December 22, 1978, Officer Deborah 
Ellison of the Hopkinsville, Kentucky, Police Department, 
on routine patrol in downtown Hopkinsville, noticed some- 
thing in the alley between Young's Hardware Store and 
Edna's Furniture Store. She backed her car up, flashed her 
spotlight down the alley, and saw two men stooped alongside 
one of the buildings. The men ran off. Officer Ellison 
drove her squad car down the alley and found a hole in the 
side of Young's Hardware Store. She radioed Officer Leroy 
Davis, whom she knew to be in the area, informing him that 
two men had fled from the alley. 

Soon after receiving Ellison's call, Officer Davis saw two 
men run across a street near where he had been patrolling. 
The two ran in opposite directions, and Davis proceeded 
after one of them. Following a chase, during which he twice 
lost sight of the man he was pursuing, Davis was finally able 
to stop him. The man was later identified as the petitioner, 
Lonnie Joe Carter. During the course of the chase, Davis 

2 Kentucky is one of at least five States that prohibit giving such an 
instruction to the jury. Others are Minnesota, see State v. Sandve, 279 
Minn. 229, 232-234, 156 N. W. 2d 230, 233-234, but see State v. Grey, 256 
N. W. 2d 74, 77-78 (the instruction may be necessary in some cases to 
prevent manifest injustice) ; Nevada, see Jackson v. State, 84 Nev. 203, 
208, 438 P. 2d 7&5, 798, Nev. Rev. Stat. 175.181 (1979); Oklahoma, see 
Brannin v. State, 375 P, 2d 276, 279-280 (Grim. App.), Hani v. State, 560 
P. 2d 207, 212 (Grim. App ) ; and Wyoming, see Kinney v. State, 36 Wyo. 
466, 472, 256 P. 1040, 1042. A few States have a statutory requirement 
that such an instruction be given to the jury unless the defendant objects. 
See, e. g., Conn Gen. Stat. 54-84 (1958), The majority of the States, 
by judicial pronouncement, require that a defense request for such a jury 
instruction be honored. See, e. g., Woodward v. State. 234 Ga. 901, 218 
S. E. 2d 629. 



CARTER v. KENTUCKY 291 

288 Opinion of the Court 

saw the petitioner drop two objects: a gym bag and a radio 
tuned to a police band. When apprehended, the petitioner 
was wearing gloves but no jacket. While Davis was pursu- 
ing the petitioner, Officer Ellison inspected the alley near the 
hole in the building wall. She found two jackets, along with 
some merchandise that had apparently been removed from 
the hardware store. 

After arresting the petitioner, Davis brought him to Officer 
Ellison to see if she could identify him as one of the men 
she had seen in the alley. Ellison noted that he was of simi- 
lar height and weight to one of the men in the alley, and 
that he wore similar clothing, but because it had been too 
dark to get a good view of the men's faces, she could not 
make a more positive identification. The petitioner was 
then taken to police headquarters. 

B 

The petitioner was subsequently indicted for third-degree 
burglary of Young's Hardware Store. The indictment also 
charged him with being a persistent felony offender, in viola- 
tion of Ky. Rev. Stat. 532.080 (Supp. 1980), on the basis of 
previous felony convictions. At the trial, the voir dire exam- 
ination of prospective jurors was conducted solely by the 
judge. 3 The prosecutor's opening statement recounted the 



3 After reading the indictment, and inquiring about passible sources of 
prejudice, the judge told the venire: 

"The fact that this man is under a charge or has been indicted has 
no weight against him as evidence. It is not evidence of his guilt and 
is not to be considered by you as evidence of his guilt. It is simply a part 
of the court process which starts, as I have said, the wheels turning to get 
the case started to be tried It means nothing more than that. He sits 
there before you today presumed by the law to be as innocent as anyone 
else in this courtroom. .. I want you to fully understand that. Sometimes 
it is not easy to do, but you are to put out of your mind the fact that 
he is accused of this crime to the point where you will consider him in 
any way guilty until and unless the Commonwealth meets its burden and 



292 OCTOBER TERM, 1980 

Opinion of the Court 450 U. S. 

evidence expected to be introduced against the petitioner. 

The opening statement of defense counsel began as follows: 
"Let me tell you a little bit about how this system 
works. If you listened to Mr. Ruff [the prosecutor] you 
are probably ready to put Lonnie Joe in the penitentiary. 
He read you a bill, a true bill that was issued by the 
Grand Jury. Now, the Grand Jury is a group of people 
that meet back here in a room and the defendant is not 
able or not allowed to present any of his testimony be- 
fore this group of people. The only thing that the 
Grand Jury hears is the prosecution's proof and I would 
say approximately what Mr. Ruff has said to you. I 
suppose that most of you would issue a true bill if 
Mr. Ruff told you what he has just told you and you 
didn't have a chance to hear what the defendant had to 
say for himself. 

"Now, that is just completely contrary to our system 
of law. A man, as the Judge has already told you, . . . 
is innocent until . . . proved guilty . . . ." 

The prosecution rested after calling Officers Ellison, Davis, 
another officer, and the owner of Young's Hardware Store. 
The trial judge then held a conference, outside of the hear- 
ing of the jury, to determine whether the petitioner would 
testify, and whether the prosecutor would be permitted to 
impeach the petitioner with his prior felony convictions. 
Defense counsel stated: 

"Judge, I think possibly the only reservation Mr. Carter 
might have about testifying would be his impeachment 
by the use of these previous offenses that he is aware 
of and has told me about. I would like to explain to 
him in front of you what this all means." 

by that I mean the Commonwealth must prove his guilt to your satisfac- 
tion beyond a reasonable doubt and if they fail to do that, you should 
find him not guilty. . . ." 



CARTER v. KENTUCKY 293 

288 Opinion of the Court 

Counsel then explained to the petitioner that if he testi- 
fied the Commonwealth could "use the fact that you have 
several offenses on your record . . . [to] impeach your . . . 
propensity to tell the truth . . . ." Counsel added that in his 
experience this was "a heavy thing; it is very serious, and 
I think juries take it very seriously . . . ." The judge indi- 
cated that under Kentucky law he had "discretionary con- 
trol" over the use of prior felony convictions for impeach- 
ment, and cautioned the prosecutor that he might be inviting 
a reversal if he introduced more than three prior felony con- 
victions, strongly suggesting that the prosecutor rely on the 
most recent convictions only. The judge then addressed the 
petitioner : 

"THE COURT: . . . You can sit there and say noth- 
ing and it cannot be mentioned if you don't testify but 
if you do these other convictions can be shown to indi- 
cate to the jury that maybe you are not telling the truth, 

* * * 

"THE COTJUT: . . . [Y]ou talk to Mr. Rogers [de- 
fense counsel] and then tell us what you want to do. 



"THE COURT: Now, Lonnie, you have come back 
after a private conference with your lawyer, Mr. Rogers [,] 
and you have told me you have decided not to take the 
stand? 

"LONNIE JOE CARTER: Yes, Sir." 4 

Upon returning to open court, the petitioner's counsel ad- 
vised the court that there would be no testimony introduced 



* Defense counsel summarized his private conversation with his client 
for the record, observing that "the advice of counsel to Mr. Carter was 
that in plain terms he was between a rock and hard place . . . ." If the 
petitioner testified he would be impeached and "if he didn't testify the 
jury[,] whether Mr. Ruff comment [ed] on it or not would probably use 
that against him." 



294 OCTOBER TERM, 1980 

Opinion of the Court 450 U. S. 

on behalf of the defense. He then requested that the follow- 
ing instruction be given to the jury: 

"The [defendant] is not compelled to testify and the fact 
that he does not cannot be used as an inference of guilt 
and should not prejudice him in any way." 

The trial court refused the request. 

The prosecutor began his summation by stating that he 
intended to review the evidence "that we were privileged to 
hear/' and cautioned the jury to "[c]onsider only what you 
have heard up here as evidence in this case and not some- 
thing that you might speculate happened or could have hap- 
pened . . . " After mentioning admissions that the petitioner 
had allegedly made at police headquarters, 5 the prosecutor 
argued: 

"Now that is not controverted whatsoever. It is not 
controverted that Lonnie Joe is the man that Miss Elli- 
son saw here. It is not controverted that Lonnie Joe is 
the man that Davis caught up here (again pointing to 
blackboard sketch). It is not controverted that Lonnie 
Joe had that bag (pointing to bag on reporter's desk) 
and that radio (pointing to radio) with him. It is not 
controverted that both of those jackets belong to Lon- 
nie Joe. At least, that is what he told the police de- 
partment. But, at any rate, that is all we have to go 
on ... 

The prosecutor continued that if there was a reasonable ex- 
planation why the petitioner ran when he saw the police, it 
was "not in the record." 6 

5 These included the alleged admission that both jackets found in the 
alley belonged to him. 

6 Defense counsel began his closing argument as follows: 

"Ladies and Gentlemen of the jury, I am sure you all right now are won- 
dering well what has happened? Why didn't Mr. Carter take the stand 
and testify? Let me tell you. The judge just read to you that the man 
is presumed innocent and that it is up to the prosecution to prove him 



CARTER v. KENTUCKY 295 

288 Opinion of the Court 

The jury found the petitioner guilty, recommending a sen- 
tence of two years. The recidivist phase of the trial fol- 
lowed. The prosecutor presented evidence of the previous 
felony convictions that had been listed in the indictment. 
The defense presented no evidence, and the jury found the 
petitioner guilty as a persistent offender, sentencing him to 
the maximum term of 20 years in prison. 

Upon appeal, the Kentucky Supreme Court rejected the 
argument that the Fifth and Fourteenth Amendments to the 
United States Constitution require that a criminal trial judge 
give the jury an instruction such as was requested here. In 
concluding that the trial judge did not commit error by re- 
fusing to give the requested instruction, the court pointed to 
Ky. Rev. Stat. 421.225 (Supp. 1980), which provides: 

"In any criminal or penal prosecution the defendant, 
on his own request, shall be allowed to testify in his own 
behalf, but his failure to do so shall not be commented 
upon or create any presumption against him." 

Holding that the jury instruction requested by counsel would 
have required the trial judge to "comment upon" the de- 
fendant's failure to testify, the court cited its previous deci- 
sion in Green v. Commonwealth, 488 S. W. 2d 339, as 
controlling. 

II 

A 

The constitutional question presented by this case is one the 
Court has specifically anticipated and reserved, first in Grif- 
fin v. California, 380 U. S. 609, 615, n. 6, and more recently 
in Lakeside v. Oregon, 435 U. S. 333, 337. But, as a question 
of federal statutory law, it was resolved by a unanimous Court 
over 40 years ago in Bruno v. United States, 308 U. S. 287. 
The petitioner in Bruno was a defendant in a federal criminal 



guilty beyond a reasonable doubt. He doesn't have to take the stand 
in his own behalf. He doesn't have to do anything." 



296 OCTOBER TERM, 1980 

Opinion of the Court 450 TJ. S. 

trial who had requested a jury instruction similar to the one 
requested by the petitioner in this case. 7 The Court, ad- 
dressing the question whether Bruno '"had the indefeasible 
right" that his proffered instruction be given to the jury, de- 
cided that a federal statute, 8 which prohibits the creation of 
any presumption from a defendant's failure to testify, re- 
quired that the "substance of the denied request should have 
been granted . . . ." Id., at 294. 9 

7 Bruno asked the trial judge to instruct the jury as follows : 

"The failure of any defendant to take the witness stand and testify in 
his own behalf, does not create any presumption against him; the jury- 
is charged that it must not permit that fact to weigh in the slightest 
degree against any such defendant, nor should this fact enter into the 
discussions or deliberations of the jury in any manner." 308 U. S., at 292. 

8 Act of Mar. 16, 1878, ch. 37, 20 Stat. 30, now 18 U. S. C. 3481, 
which states in pertinent part: 

"In a trial of all persons . . . [the defendant] shall, at his own request, 
be a competent witness. His failure to make such a request shall not 
create any presumption against him/' 

9 At common law, defendants in criminal trials could not be compelled 
to furnish evidence against themselves, but they were also not permitted 
to testify. In the context of the original enactment of the federal statute 
found dispositive in the Bruno case, this Court commented on the altera- 
tion of this common-law rule: "This rule, while affording great protection 
to the accused against unfounded accusation, in many cases deprived him 
from explaining [incriminating] circumstances .... To relieve him from 
this embarrassment the law was passed. . . . [He] is by the act in ques- 
tion permitted ... to testify . . . ." Wilson v. United States, 149 U. S. GO, 
65-66. Following enactment of the federal statute, the States followed 
suit with similar laws. See Dills, The Permissibility of Comment on the 
Defendant's Failure to Testify in His Own Behalf in Criminal Proceedings, 
3 Wash. L. Rev. 161, 164-165 (1928); 8 J. Wigmore, Evidence 2272, 
p. 427 (J. McNaughton rev. 1961). 

The issue in Wilson, supra, was whether it was error for the prosecutor 
to comment adversely on the defendant's failure to testify. The Court 
unanimously held that it was, observing that "[n]othing could have been 
more effective with the jury to induce them to disregard entirely the 
presumption of innocence to which by the law he was entitled . . . ." 149 
U. S., at 66. As later in Bruno, however, the Court did not reach any 
Fifth Amendment issue. 



CARTER v. KENTUCKY 297 

288 Opinion of the Court 

The Griffin case came here shortly after the Court had held 
that the Fifth Amendment command that no person "shall 
be compelled in any criminal case to be a witness against 
himself" is applicable against the States through the Four- 
teenth Amendment. Malloy v. Hogan, 378 U. S. I. 10 In 
Griffin, the Court considered the question whether it is a vio- 
lation of the Fifth and Fourteenth Amendments to invite a 
jury in a state criminal trial to draw an unfavorable infer- 
ence from a defendant's failure to testify. The trial judge 
had there instructed the jury that "a defendant has a consti- 
tutional right not to testify/' and that the defendant's exer- 
cise of that right "does not create a presumption of guilt nor 
by itself warrant an inference of guilt" nor "relieve the pros- 
ecution of any of its burden of proof." But the instruction 
additionally permitted the jury to "take that failure into con- 
sideration as tending to indicate the truth of [the State's] 
evidence and as indicating that among the inferences that 
may be reasonably drawn therefrom those unfavorable to the 
defendant are the more probable." 380 U. S., at 610. 

This Court set aside Griffin's conviction because "the Fifth 
Amendment . . . forbids either comment by the prosecution 
on the accused's silence or instructions by the court that 
such silence is evidence of guilt." Id., at 615. 11 It con- 
demned adverse comment on a defendant's failure to testify 
as reminiscent of the " 'inquisitorial system of criminal jus- 



10 The Malloy case overruled Twining v. New Jersey, 211 U. S. 78, and 
Adamson v. California, 332 U. S. 46, both of which had "adhered to the 
position that the Federal Constitution does not require the States to 
accord the Fifth Amendment privilege against self-incrimination " Tehan 
v. United States ex reL Shott, 382 U. S. 406, 412. Malloy established that 
the same standards determine the validity of claims of Fifth Amendment 
privilege "whether ... in a state or federal court/' 378 U. S., at 11. 

11 The Court in the Griffin case expressly reserved decision "on whether 
an accused can require . . . that the jury be instructed that his silence 
must be disregarded/' 380 TJ. S., at 615, n. 6. 



298 OCTOBER TERM, 1980 

Opinion of the Court 450 U. S. 

tice/ " id., at 614, quoting Murphy v. Waterfront Comm'n, 
378 U. S. 52, 55, and concluded that such comment effected 
a court-imposed penalty upon the defendant that was unac- 
ceptable because "[i]t cuts down on the privilege by making 
its assertion costly." 380 U. S., at 614. 12 

The Court returned to a consideration of the Fifth Amend- 
ment and jury instructions in Lakeside v. Oregon, 435 U. S- 
333, where the question was whether the giving of a "no-in- 
ference" instruction over defense objection violates the Con- 
stitution. Despite trial counsel's complaint that his strategy 
was to avoid any mention of his client's failure to testify, a 
no-inference instruction 1S was given by the trial judge. The 
petitioner contended that when a trial judge in any way 
draws the jury's attention to a defendant's failure to testify, 
unless the defendant acquiesces, the court invades the de- 
fendant's privilege against compulsory self-incrimination. 
This argument was rejected. 

The Lakeside Court reasoned that the Fifth and Four- 
teenth Amendments bar only adverse comment on a defend- 
ant's failure to testify, and that "a judge's instruction that 
the jury must draw no adverse inferences of any kind from 
the defendant's exercise of his privilege not to testify is 'com- 
ment' of an entirely different order." Id., at 339. The pur- 
pose of such an instruction, the Court stated, "is to remove 
from the jury's deliberations any influence of unspoken ad- 
verse inferences," and "cannot provide the pressure on a de- 
fendant found impermissible in Griffin/ 9 Ibid. 

12 In Tehan v. United States ex rel Shott, supra, it was decided that 
Griffin was not to be given retroactive application. 
"The Lakeside trial judge gave the following instruction to the jury: 
"Under the laws of this State a defendant has the option to take the 
witness stand in his or her own behalf. If a defendant chooses not to 
testify, such a circumstance gives rise to no inference or presumption 
against the defendant, and this must not be considered by you in deter- 
mining the question of guilt or innocence/ 1 435 U. S., at 335. 



CARTER v. KENTUCKY 29 

288 Opinion of the Court 

The Court observed in Lakeside that the petitioner's argu- 
ment there rested on "two very doubtful assumptions:" 

"First, that the jurors have not noticed that the defend- 
ant did not testify and will not, therefore, draw adverse 
inferences on their own. Second, that the jurors will 
totally disregard the instruction, and affirmatively give 
weight to what they have been told not to consider at 
all. Federal constitutional law cannot rest on specula- 
tive assumptions so dubious as these/' Id., at 340 (foot- 
note omitted). 

Finally, the Court stressed that "[t]he very purpose" of a 
jury instruction is to direct the jurors' attention to important 
legal concepts "that must not be misunderstood, such as rea- 
sonable doubt and burden of proof," and emphasized that 
instruction "in the meaning of the privilege against compul- 
sory self-incrimination is no different." Ibid. 

B 

The inclusion of the privilege against compulsory self- 
incrimination 14 in the Fifth Amendment 

"reflects many of our fundamental values and most noble 
aspirations: our unwillingness to subject those suspected 
of crime to the cruel trilemma of self -accusation, perjury 
or contempt; . . . our fear that self -incriminating state- 
ments will be elicited by inhumane treatment and 
abuses ; our sense of fair play which dictates 'a, fair state- 
individual balance by requiring the government . . . , in 
its contest with the individual to shoulder the entire 
load,' . . . ; our distrust of self-deprecatory statements; 
and our realization that the privilege, while sometimes 

14 For the history and development of the privilege, which has its roots 
in English and American revulsion against the inquisitorial practices of 
the Star Chamber and High Commission, see L. Levy, Origins of the Fifth 
Amendment (1968); E. Cleary, McCormick on Evidence 114 (2d ed. 
1972); 8 J. Wigmore, Evidence 2250 (J. McNaughton rev. 1961). 



300 OCTOBER TERM, 1980 

Opinion of the Court 450 IL S 

'a shelter to the guilty/ is often 'a protection to the in- 
nocent/ " Murphy v. Waterfront Comm'n, supra, at 
55. 15 

The principles enunciated in our cases construing this privi- 
lege, against both statutory and constitutional backdrops, 
lead unmistakably to the conclusion that the Fifth Amend- 
ment requires that a criminal trial judge must give a "no- 
adverse-inference" jury instruction when requested by a de- 
fendant to do so. 

In Bruno, the Court declared that the failure to instruct 
as requested was not a mere "technical erro[r] . . . which 
do[es] not affect . . . substantial rights . . . ." It stated that 
the "right of an accused to insist on" the privilege to remain 
silent is "[o]f a very different order of importance . . ." from 
the "mere etiquette of trials and . . . the formalities and 
minutiae of procedure." 308 U. S., at 293-294. Thus, while 
the Bruno Court relied on the authority of a federal statute, 
it is plain that its opinion was influenced by the absolute con- 
stitutional guarantee against compulsory self-incrimination. 16 

15 The Court has recognized that there are many reasons unrelated to 
guilt or innocence for declining to testify: 

"It is not every one who can safely venture on the witness stand though 
entirely innocent of the charge against him. Excessive timidity, nervous- 
ness when facing others and attempting to explain transactions of a sus- 
picious character, and offences charged against him, will often confuse and 
embarrass him to such a, degree as to increase rather than remove preju- 
dices against him. It is not every one, however honest, who would, there- 
fore, willingly be placed on the witness stand." Wilson v. United States, 
149 U. S., at 66. 

Other reasons include the fear of impeachment by prior convictions (the 
petitioner's fear in the present case), or by other damaging information 
not necessarily relevant to the charge being tried, Griffin, 380 U. S., at 
615, and reluctance to "incriminate others whom [defendants] either love 
or fear," Lakeside, 435 U. S., at 344, n. 2 (dissenting opinion). 

16 In Oriffin, the Court relied on the statutory opinion in Wilson, replac- 
ing the words "act" and "statute" with the words "Fifth Amendment." 
380 U. S., at 613. The same can be done here with respect to the Court's 
opinion in Bruno: when "Congress" is replaced with "the Fifth Amend- 



CARTER v. KENTUCKY 301 

288 Opinion of the Court 

The Griffin case stands for the proposition that a defend- 
ant must pay no court-imposed price for the exercise of 
his constitutional privilege not to testify. The penalty was 
exacted in Griffin by adverse comment on the defendant's 
silence; the penalty may be just as severe when there is no 
adverse comment, but when the jury is left to roam at large 
with only its untutored instincts to guide it, to draw from 
the defendant's silence broad inferences of guilt. Even with- 
out adverse comment, the members of a jury, unless in- 
structed otherwise, may well draw adverse inferences from 
a defendant's silence. 17 

The significance of a cautionary instruction was forcefully 
acknowledged in Lakeside, where the Court found no consti- 
tutional error even when a no-inference instruction was given 
over a defendant's objection. The salutary purpose of the 
instruction, "to remove from the jury's deliberations any in- 
fluence of unspoken adverse inferences/' was deemed so im- 
portant that it there outweighed the defendant's own pre- 
ferred tactics. 18 



merit," "the spirit of the Self-Incrimination Clause is reflected/' Griffin, 
380 U. S., at 613-614. 

17 Indeed, the dissenting opinion in Griffin suggested that more harm 
may flow from the lack of guidance to the jury on the meaning of the 
Fifth Amendment privilege than from reasonable comment upon the 
exercise of that privilege With specific reference to decisions from Ken- 
tucky and one other State, the dissenters observed that "[w]ithout limit- 
ing instructions, the danger exists that the inferences drawn by the jury 
may be unfairly broad." Id., at 623. The Court in Griffin indicated no 
disagreement with this view. 

18 It has been almost universally thought that juries notice a defendant's 
failure to testify. "[T]he jury will, of course, realize this quite evident 
fact, even though the choice goes unmentioned. ... [It is] a fact ines- 
capably impressed on the jury's consciousness." Griffin, supra, at 621, 
622 (dissenting opinion). In Lakeside the Court cited an acknowledged 
authority's statement that " '[t]he layman's natural first suggestion would 
probably be that the resort to privilege in each instance is a clear confes- 
sion of crime * " 435 U. S., at 340, n. 10, quoting 8 J. Wigmore, Evidence 
2272, p. 426 (J. McNaughton rev. 1961). 



302 OCTOBER TERM, 1980 

Opinion of the Court 450 U S. 

We have repeatedly recognized that "instructing a jury in 
the basic constitutional principles that govern the adminis- 
tration of criminal justice," Lakeside, 435 U. S., at 342, is 
often necessary. 19 Jurors are not experts in legal principles; 
to function effectively, and justly, they must be accurately 
instructed in the law. Such instructions are perhaps no- 
where more important than in the context of the Fifth 
Amendment privilege against compulsory self-in crimination, 
since "[t]oo many, even those who should be better advised, 
view this privilege as a shelter for wrongdoers. They too 
readily assume that those who invoke it are . . . guilty of 
crime . . . ." Ullman v. United States, 350 U. S. 422, 426. 
And, as the Court has stated, "we have not yet attained that 
certitude about the human mind which would justify us 
in ... a dogmatic assumption that jurors, if properly ad- 
monished, neither could nor would heed the instructions of 
the trial court . . . ." Bruno, 308 U. S., at 294. 20 



19 In Taylor v. Kentucky, 436 U. S. 478, the Court held that the Due 
Process Clause requires that instructions be given on the presumption of 
innocence and the lack of evidentiary significance of an indictment. The 
Court recognized that an instruction on the presumption of innocence has 
a "salutary effect upon lay jurors/' and that "the ordinary citizen well may 
draw significant additional guidance" from such an instruction. Id, at 
484. The Court stressed the "purging" effect of the instruction and the 
need to protect "the accused's constitutional right to be judged solely on 
the basis of proof adduced at trial." Id., at 486. The same can be said, 
of course, with respect to the privilege of remaining silent. Indeed, the 
claim is even more compelling here than in Taylor, where the dissenting 
opinion noted that "the omission [in Taylor's trial] did not violate a 
specific constitutional guarantee, such as the privilege against compulsory 
self-incrimination." Id, at 492 (STEVENS, J.) (footnote omitted). 

20 "It is obvious that under any system of jury trials the influence of 
the trial judge on the jury is necessarily and properly of great weight, 
and that his lightest word or intimation is received with deference, and 
may prove controlling." Starr v. United States, 153 U. S. 614, 626. For 
modern empirical support of this longstanding assumption, see Reed, 
Jury Simulation: The Impact of Judge's Instructions and Attorney Tactics 
on Decisionmaking, 71 J. Crim. L. & C. 68 (1980) ; Bridgeman & Mar- 



CARTER v. KENTUCKY 303 

288 Opinion of the Court 

A trial judge has a powerful tool at his disposal to protect 
the constitutional privilege the jury instruction and he 
has an affirmative constitutional obligation to use that tool 
when a defendant seeks its employment. No judge can pre- 
vent jurors from speculating about why a defendant stands 
mute in the face of a criminal accusation, but a judge can, 
and must, if requested to do so, use the unique power of the 
jury instruction to reduce that speculation to a minimum. 21 

C 

The only state interest advanced by Kentucky in refusing 
a request for such a jury instruction is protection of the de- 
fendant: "the requested 'no inference' instruction . . . would 
have been a direct 'comment' by the court and would have 
emphasized the fact that the accused had not testified in his 
own behalf." Green v. Commonwealth, 488 S. W* 2d, at 341. 
This purported justification was specifically rejected in the 
Lakeside case, where the Court noted that "[i]t would be 
strange indeed to conclude that this cautionary instruction 
violates the very constitutional provision it is intended to 
protect." 435 TJ. S., at 339. 

Kentucky also argues that in the circumstances of this case 
the jurors knew they could not make adverse inferences from 
the petitioner's election to remain silent because they were 
instructed to determine guilt "from the evidence alone/ 1 and 
because failure to testify is not evidence. The Common- 
wealth's argument is unpersuasive. Jurors are not lawyers; 
they do not know the technical meaning of "evidence/' 

lowe, 64 J. Applied Psychology 91 (1979); Cornish & Sealy, Juries 
and the Rules of Evidence, 1973 Grim. L. Rev. 208, 217-218, 222; Forston, 
Judge's Instructions: A Quantitative Analysis of Jurors' Listening Com- 
prehension, 18 Today's Speech No. 4, p. 34 (1970). 

21 The importance of a no-inference instruction is underscored by a 
recent national public opinion survey conducted for the National Center 
for State Courts, revealing that 37% of those interviewed believed that it 
is the responsibility of the accused to prove his innocence. 64 A. B. A. J. 
653 (1978). 



304 OCTOBER TERM, 1980 

Opinion of the Court 450 U.S. 

They can be expected to notice a defendant's failure to tes- 
tify, and, without limiting instruction, to speculate about 
incriminating inferences from a defendant's silence. 

The other trial instructions and arguments of counsel that 
the petitioner's jurors heard at the trial of this case were no 
substitute for the explicit instruction that the petitioner's 
lawyer requested. Although the jury was instructed that 
"[t]he law presumes a defendant to be innocent," it may 
be doubted that this instruction contributed in a significant 
way to the jurors' proper understanding of the petitioner's 
failure to testify. Without question, the Fifth Amendment 
privilege and the presumption of innocence are closely 
aligned. But these principles serve different functions, and 
we cannot say that the jury would not have derived "sig- 
nificant additional guidance," Taylor v. Kentucky, 436 TJ. S. 
478, 484, from the instruction requested. See United States 
v. Bain, 596 F. 2d 120 (CA5) ; United States v. English, 409 
F. 2d 200, 201 (CAS). And most certainly, defense counsel's 
own argument that the petitioner "doesn't have to take the 
stand . . . [and] doesn't have to do anything" cannot have 
had the purging effect that an instruction from the judge 
would have had. "[A]rguments of counsel cannot substitute 
for instructions by the court." Taylor v. Kentucky, supra, at 
4S9. 22 

Finally, Kentucky argues that because the evidence of 
petitioner's guilt was "overwhelming and could not be ex- 
plained," any constitutional error committed by the state 
courts was harmless. Chapman v. California, 386 TJ. S. 18. 
While it is arguable that a refusal to give an instruction 
similar to the one that was requested here can never be harm- 
less, cf. Bruno, supra, at 293, we decline to reach the issue, 
because it was not presented to or considered by the Supreme 
Court of Kentucky. See Sandstrom v. Montana, 442 U. S. 
510, 527. 

23 See n. 20, supra. 



CARTER v. KENTUCKY 305 

288 POWELL, J., concurring 

III 

The freedom of a defendant in a criminal trial to remain 
silent "unless he chooses to speak in the unfettered exercise 
of his own will" is guaranteed by the Fifth Amendment and 
made applicable to state criminal proceedings through the 
Fourteenth. Malloy v. Hogan, 378 U. S., at 8. And the 
Constitution further guarantees that no adverse inferences 
are to be drawn from the exercise of that privilege. Griffin 
v. California, 380 U. S. 609. Just as adverse comment on a 
defendant's silence "cuts down on the privilege by making 
its assertion costly," id., at 614, the failure to limit the jurors' 
speculation on the meaning of that silence, when the defend- 
ant makes a timely request that a prophylactic instruction be 
given, exacts an impermissible toll on the full and free exer- 
cise of the privilege. Accordingly, we hold that a state trial 
judge has the constitutional obligation, upon proper request, 
to minimize the danger that the jury will give evidentiary 
weight to a defendant's failure to testify. 

For the reasons stated, the judgment is reversed, and the 
case is remanded to the Supreme Court of Kentucky for fur- 
ther proceedings not inconsistent with this opinion. 

It is so ordered. 

JUSTICE POWELL, concurring. 

Although joining the opinion of the Court, I write briefly 
to make clear that, for me, this result is required by prece- 
dent, not by what I think the Constitution should require. 

The Fifth Amendment, applicable to the States through the 
Fourteenth, provides that no person "shall be compelled in 
any criminal case to be a witness against himself." The 
question in Griffin v. California, 380 U. S. 609 (1965), was 
whether this proscription was violated if jurors were told 
that they could draw inferences from a defendant's failure 
to testify. The Court held that neither the judge nor the 
prosecutor could suggest that jurors draw such inferences. 



306 OCTOBER TERM, 1980 

POWELL, J., concurring 450 U.S. 

A defendant who chooses not to testify hardly can claim 
that he was compelled to testify. The Court also held, 
nevertheless, that any "penalty imposed by courts for exer- 
cising [this] constitutional privilege" cannot be tolerated 
because "[i]t cute down on the privilege by making its asser- 
tion costly." Id., at 614. 

JUSTICE STEWART'S dissenting opinion in Griffin, in which 
JUSTICE WHITE joined, responded persuasively to this de- 
parture from the language and purpose of the Self-Incrim- 
ination Clause. JUSTICE STEWART wrote: 

"We must determine whether the petitioner has been 
'compelled ... to be a witness against himself/ Com- 
pulsion is the focus of the inquiry. Certainly, if any 
compulsion be detected in the California procedure, it 
is of a dramatically different and less palpable nature 
than that involved in the procedures which historically 
gave rise to the Fifth Amendment guarantee. . . . 
"I think that the Court in this case stretches the con- 
cept of compulsion beyond all reasonable bounds, and 
that whatever compulsion may exist derives from the 
defendant's choice not to testify, not from any comment 
by court or counsel. . . . [T]he jury will, of course, 
realize th[e] quite evident fact [that the defendant has 
chosen not to testify], even though the choice goes un- 
mentioned." Id., at 620-621. 

The one person who usually knows most about the critical 
facts is the accused. For reasons deeply rooted in the his- 
tory we share with England, the Bill of Rights included the 
Self-Incrimination Clause, which enables a defendant in a 
criminal trial to elect to make no contribution to the fact- 
finding process. But nothing in the Clause requires that 
jurors not draw logical inferences when a defendant chooses 
not to explain incriminating circumstances. Jurors have 
been instructed that the defendant is presumed to be inno- 
cent and that this presumption can be overridden only by 



CARTER v. KENTUCKY 307 

288 REHNQTTIST, J., dissenting 

evidence beyond a reasonable doubt. California Chief Jus- 
tice Tray nor commented that judges and prosecutors should 
be able to explain that "a jury [may] draw unfavorable in- 
ferences from the defendant's failure to explain or refute evi- 
dence when he could reasonably be expected to do so. Such 
comment would not be evidence and would do no more than 
make clear to the jury the extent of its freedom in drawing 
inferences." Traynor, The Devils of Due Process in Crim- 
inal Detection, Detention, and Trial, 33 U. Chi. L. Rev. 657, 
677 (1966); accord, Schaefer, Police Interrogation and the 
Privilege Against Self-Incrimination, 61 Nw. U. L. Rev. 506, 
520 (1966). 

I therefore would have joined JUSTICES STEWART and 
WHITE in dissent in Griffin. But Griffin is now the law, and 
based on that case the present petitioner was entitled to the 
jury instruction that he requested. I therefore join the 
opinion of the Court. 

JUSTICE STEVENS, with whom JUSTICE BRENNABT joins, 
concurring. 

While I join the Court's opinion, I add this comment to 
emphasize that today's holding is limited to cases in which 
the defendant has requested that the jury be instructed not 
to draw an inference of guilt from the defendant's failure to 
testify. I remain convinced that the question whether such 
an instruction should be given in any specific case like the 
question whether the defendant should testify on his own be- 
half should be answered by the defendant and his lawyer, 
not by the State. See Lakeside v. Oregon, 435 U. S. 333, 
343-348 (1978) (STEVENS, J., dissenting). 

JUSTICE REBCNQUIST, dissenting. 

The Court has reached its conclusion in this case by a 
series of steps only the first of which is traceable to the 
United States Constitution. Yet since the result of the 
Court's decision is to reverse the judgment of the Supreme 



308 OCTOBER TERM, 1980 

REHNQTJIST, J., dissenting 450 TT. S. 

Court of Kentucky, the decision must obviously rest upon 
the fact that the decision of that court is inconsistent with 
the United States Constitution. 

As the Court points out, the constitutional question pre- 
sented by this case is one the Court has specifically antici- 
pated and reserved, first in Griffin v. California, 380 TL S. 
609, 615, n. 6 (1965), and more recently in Lakeside v. Oregon, 
435 U. S. 333 (1978). 

But the Court, with a singular paucity of reasoning, points 
to the fact that in a case arising in the federal system, a de- 
fendant requesting a charge similar to that which petitioner 
requested here was held by this Court to be entitled to it. 
The differences, of course, are obvious: In the first place, the 
case of Bruno v. United States, 308 U. S. 287 (1939), was 
governed by the federal statute there cited: 

"The accused could 'at his own request but not other- 
wise be a competent witness. And his failure to make 
such a request shall not create any presumption against 
him/ Such was the command of the law-makers. The 
only way Congress could provide that abstention from 
testifying should not tell against an accused was by an 
implied direction to judges to exercise their traditional 
duty in guiding the jury by indicating the considerations 
relevant to the latter's verdict on the facts. . . . Con- 
cededly the charge requested by Bruno was correct. The 
Act of March 16, 1878, gave him the right to invoke it." 
Id., at 292-293. 

Here, of course, the Act of March 16, 1878, does not attempt 
to govern the procedures or instructions which shall be given 
in the trial courts of Kentucky. Therefore the Act of Con- 
gress which, in Bruno, was stated to entitle a defendant to 
a charge that no presumption should arise from his refusal 
to take the stand, is of no relevance whatever to the Court's 
decision in this case. 

If we begin with the relevant provisions of the Constitu- 



CARTER v. KENTUCKY 309 

288 RBHNQUIST, J., dissenting 

tion, which is where an unsophisticated lawyer or layman 
would probably think we should begin, we find the provision 
in the Fifth Amendment stating that "[n]o person . . . shall 
be compelled in any criminal case to be a witness against 
himself . . . ." Until the mysterious process of transmogrifi- 
cation by which this Amendment was held to be "incorpo- 
rated" and made applicable to the States by the Fourteenth 
Amendment in Malloy v. Hogan, 378 U. S. 1 (1964), the 
provision itself would not have regulated the conduct of 
criminal trials in Kentucky. But even if it did, no one here 
claims that the defendant was forced to take the stand against 
his will or to testify against himself inconsistently with the 
provisions of the Fifth Amendment. The claim is rather 
that in Griffin v. California, supra, the Court, building on the 
language of the Constitution itself and on Malloy, supra, held 
that a charge to the effect that any evidence or facts ad- 
duced against the defendant which he could be reasonably 
expected to deny or explain could be taken into consideration 
by the jury violated the constitutional privilege against com- 
pulsory self-incrimination. The author of the present opin- 
ion dissented from that holding, stating: 

"The formulation of procedural rules to govern the 
administration of criminal justice in the various States 
is properly a matter of local concern. We are charged 
with no general supervisory power over such matters; 
our only legitimate function is to prevent violations of 
the Constitution's commands." 380 U. S., at 623. 

But even Griffin, supra, did not go as far as the present 
opinion, for as that opinion makes clear it left open the ques- 
tion of whether a state-court defendant was entitled as a 
matter of right to a charge that his refusal to take the stand 
should not be taken into consideration against him by the 
jury. The Court now decides that he is entitled to such a 
charge, and, I believe, in doing so, wholly retreats from the 
statement in the Griffin dissent that "[t]he formulation of 



310 OCTOBER TERM, 1980 

REHNQTTIST, J,, dissenting 460 U.S. 

procedural rules to govern the administration of criminal 
justice in the various States is properly a matter of local 
concern." 

The Court's opinion states, ante, at 301, that "[t]he Griffin 
case stands for the proposition that a defendant must pay 
no court-imposed price for the exercise of his constitutional 
privilege not to testify." Such Thomistic reasoning is now 
carried from the constitutional provision itself, to the Griffin 
case, to the present case, and where it will stop no one can 
know. The concept of "burdens" and "penalties" is such a 
vague one that the Court's decision allows a criminal de- 
fendant in a state proceeding virtually to take from the trial 
judge any control over the instructions to be given to the 
jury in the case being tried. I can find no more apt words 
with which to conclude this dissent than those stated by Jus- 
tice Harlan, concurring in the Courtis opinion in Griffin: 

"Although compelled to concur in this decision, I am 
free to express the hope that the Court will eventually 
return to constitutional paths which, until recently, it 
has followed throughout its history." 380 U. S., at 617. 



CHICAGO & N. W. TR. CO. v. KALO BRICK & TILE CO. 311 

Syllabus 

CHICAGO & NORTH WESTERN TRANSPORTATION 
CO. v. KALO BRICK & TILE CO. 

CERTIOBARI TO THE COURT OF APPEAI^S OF IOWA 
No. 79-1336. Argued December 9, 1980 Decided March 9, 1981 

The Interstate Commerce Act authorizes the Interstate Commerce Com- 
mission (ICC) to regulate interstate rail carriers' abandonment of 
railroad lines, including branch lines. Under the Act, no such carrier 
may abandon a line unless it first obtains a certificate from the ICC 
that the present or future public convenience and necessity permit such 
an abandonment. After petitioner interstate rail carrier's branch line 
in Iowa had been damaged by mud slides, it ultimately decided 
not to repair, and to stop using, the line, so notified respondent brick 
manufacturer, which had shipped its products over the line, and applied 
to the ICC for a certificate permitting it to abandon the line. The ICC 
granted the application, finding that petitioner had abandoned the line 
due to conditions beyond its control, that further repairs would not have 
been sufficient to insure continuous operation, that the abandonment 
was not "willful," that respondent had no right to insist that the line 
be maintained solely for its use, and that continued operation would 
be an unnecessary burden on petitioner and on interstate commerce. 
Respondent had appeared to oppose the application but never per- 
fected its filing before the ICC and did not seek judicial review of the 
ICC's decision, but, instead, brought a damages action in an Iowa state 
court while the abandonment application was still pending. It alleged 
that petitioner had violated an Iowa statute and state common law by 
refusing to provide cars on the branch line, by negligently failing to 
maintain the roadbed, and by tortiously interfering with respondent's 
contractual relations with its customers. The state trial court dis- 
missed the action on the ground that the Interstate Commerce Act 
pre-empted state law as to the matters in contention. The Iowa Court 
of Appeals reversed, ruling that the state abandonment law was not 
pre-empted and that the state and federal schemes complemented one 
another. 

Held: The Interstate Commerce Act precludes a shipper from pressing a 
state-court action for damages against a regulated rail carrier when, as 
here, the ICC, in approving the carrier's application for abandonment, 
reaches the merits of the matters the shipper seeks to raise in state 
court. Pp. 317-332. 



312 OCTOBER TERM, 1980 

SyUabus 450 U.S. 

(a) "[T]here can be no divided authority over interstate commerce, 
and . the acts of Congress on that subject are supreme and exclu- 
sive " Missouri Pacific R. Co. v. Stroud, 267 TJ. S. 404, 408. Conse- 
quently, state efforts to regulate commerce must fall when they conflict 
with or interfere with federal authority over the same activity. Pp. 
317-319. 

(b) The ICC's authority under the Interstate Commerce Act to regu- 
late railroad line abandonments is exclusive and plenary. This author- 
ity is critical to the congressional scheme, which contemplates compre- 
hensive administrative regulation of interstate commerce. The Act's 
structure makes it clear that Congress intended that an aggrieved ship- 
per should seek relief in the first instance from the ICC. Pp. 319-323 

(c) Both the letter and spirit of the Interstate Commerce Act are 
inconsistent with Iowa law as construed by the Iowa Court of Appeals. 
That court's decision amounts to a holding that a State can impose 
sanctions upon a regulated carrier for doing that which only the ICC 
has the power to declare unlawful or unreasonable. A system under 
which each State could, through its courts, impose on railroad carriers 
its own version of reasonable service requirements could hardly be more 
at odds with the uniformity contemplated by Congress in enacting the 
Interstate Commerce Act. Even though the abandonment approval 
did not come here until after respondent filed its civil suit, it would 
be contrary to the language of the statute to permit litigation challeng- 
ing the lawfulness of the carrier's actions to go forward when the ICC 
has expressly found them to be reasonable. Accordingly, Iowa's statu- 
tory cause of action for failure to furnish cars cannot be asserted against 
an interstate rail carrier on the facts of this case. The same reason- 
ing applies to respondent's asserted common-law causes of action, be- 
cause they, too, are essentially attempts to litigate the issues underlying 
petitioner's abandonment of the branch line in issue. The questions 
respondent seeks to raise in the state court whether roadbed mainte- 
nance was negligent or reasonable and whether petitioner abandoned its 
line with some tortious motive are precisely the sorts of concerns that 
Congress intended the ICC to address in weighing abandonment re- 
quests. Consequently, on the facts of this case, the Interstate Com- 
merce Act also pre-empts Iowa's common-law causes of action when the 
judgments of fact and of reasonableness necessary to the decision have 
already been made by the ICC. Pp. 324-331. 

295 N. W. 2d 467, reversed and remanded. 

MARSHALL, J., delivered the opinion for a unanimous Court. 



CHICAGO & N. W. TR. CO. v. KALO BRICK & TILE CO. 313 
311 Opinion of the Court 

Bruce E. Johnson argued the cause for petitioner. With 
him on the briefs were Louis T. Duerinck, James P. Daley, 
Stuart F. Gassner, and Frank W. Davis, Jr. 

M. Gene Blackburn argued the cause for respondent. With 
him on the brief was Ned Alan Stockdale. 

Henri F. Rush argued the cause for the United States et al. 
as amid curiae urging reversal. With him on the brief were 
Solicitor General McCree, Deputy Solicitor General Getter, 
Edwin S. Kneedler, Richard A. Allen, and Charles A. Stark. 

JUSTICE MARSHALL delivered the opinion of the Court. 

Through the Interstate Commerce Act and its amend- 
ments, Congress has granted to the Interstate Commerce 
Commission authority to regulate various activities of inter- 
state rail carriers, including their decisions to cease service 
on their branch lines. Under Iowa state law, a shipper by 
rail who is injured as the result of a common carrier's failure 
to provide adequate rail service has available several causes 
of action for damages. In this case we are called upon to de- 
cide whether these state-law actions may be asserted against 
a regulated carrier when the Commission has approved its 
decision to abandon the line in question. 

I 

Petitioner, an interstate common carrier by rail, is subject 
to the jurisdiction of the Interstate Commerce Commission. 
For some time prior to April 1973, petitioner operated a 5.6- 
mile railroad branch line between the towns of Kalo and 
Fort Dodge in Iowa. Respondent operated a brick manu- 
facturing plant near Kalo, and used petitioner's railroad cars 
and branch line to transport its products to Fort Dodge and 
outward in interstate commerce. 1 



1 Respondent used petitioner's branch line only for the shipment of 
bricks that were traveling in interstate commerce. All of the bricks that 
respondent shipped intrastate traveled by truck. 



314 OCTOBER TERM, 1980 

Opinion of the Court 450 U.S. 

During the 1960's, the tracks on the Kalo-Fort Dodge 
branch line were damaged by three mud slides. Petitioner 
made repairs after the first two slides, but following the last 
slide in 1967, when portions of the embankment wholly van- 
ished under the waters of the Des Moines River, petitioner 
decided to stop using the branch line. Petitioner instead 
leased part of another railroad's parallel branch line to con- 
nect Kalo with Fort Dodge. In April 1973, the leased line 
was also damaged by a mud slide. By that time, respondent 
was the only shipper using the Kalo-Fort Dodge line. After 
inspecting the damage to the leased line, petitioner decided 
not to repair it. Petitioner then notified respondent that it 
would no longer provide service on the Kalo-Fort Dodge line, 
although it would continue to make cars available at Fort 
Dodge if respondent would ship its goods there by truck. 
Respondent determined that shipment by truck was not eco- 
nomically feasible, and notified its customers that it would 
complete existing contracts and then go out of business. 2 

In November 1973, petitioner filed with the Commission 
an application for a certificate declaring that the public con- 
venience and necessity permitted it to abandon the Kalo- 
Fort Dodge branch line. The United States Government in- 
tervened in support of petitioner's application. Respondent 
was the sole party appearing in opposition to the request, 
but failed to perfect its filing before the Commission. 8 In a 

2 It is undisputed that at this time, petitioner had not made a decision 
whether to abandon the Kalo-Fort Dodge branch line. An abandonment 
"is characterized by an intention of the carrier to cease permanently 
or indefinitely all transportation service on the relevant line/' ICC v. 
Chicago & N. W. Transp. Co., 533 P. 2d 1025, 1028 (CAS 1976). See 
ICC v. Chicago, R. I. & P. R. Co., 501 F. 2d 908, 911 (CAS 1974), 
cert, denied, 420 U. S. 972 (1975). An embargo, by contrast, is a tem- 
porary emergency suspension of service initiated by filing of a notice with 
the Commission. ICC v. Chicago & N. W. Transp. Co., supra, at 1027, 
n. 2. 

3 In particular, respondent "did not file a verified statement in opposi- 
tion as required," and was therefore "deemed to be in default and en- 



CHICAGO & N. W. TR. CO. v. KALO BRICK & TILE CO. 315 
311 Opinion of the Court 

decision issued in April 1976, the Commission found that 
petitioner had abandoned the line due to conditions beyond 
its control and granted the request for a certificate. Chicago 
& N. W. Transp. Co. Abandonment, AB1, Sub. No. 24 (Jan- 
11, 1976), App. to Pet. for Cert. 34a. Respondent made no 
attempt to comply with the provisions of the Interstate Com- 
merce Act regarding judicial review of the Commission's de- 
cision. 4 Instead, while the abandonment request was still 
pending before the Commission, respondent filed this dam- 
ages action against petitioner in state court. The complaint 
alleged that petitioner had violated Iowa Code 479.3, 
479.122 (1971) and state common law by refusing to provide 
cars on the branch line, by negligently failing to maintain 
the roadbed, and by tortiously interfering with respondent's 
contractual relations with its customers. 5 The state trial 



titled to no further formal proceedings." Chicago & N. W. Transp. Co. 
Abandonment, AB1, Sub. No. 24 (Jan. 11, 1976), App. to Pet. for Cert. 
34a-35a, The reason for this default, according to respondent, was that it 
had gone out of business and therefore had no continuing interest in forcing 
petitioner to continue its service on the branch line. 

* See 28 TL S. C. 2321 (a), 2342 (5), 2343, 2344. 

5 Iowa Code 479.3 (1971) provides in relevant part: 

"Every railway corporation shall upon reasonable notice, and within a 
reasonable time, furnish suitable cars to any and all persons who may 
apply therefor, for the transportation of any and all kinds of freight, 
and receive and transport such freight with all reasonable dispatch . . . ." 
Iowa Code 479.122 (1971) provides: 

"Every corporation operating a railway shall be liable for all damages 
sustained by any person, including employees of such corporation, in con- 
sequence of the neglect of the agents, or by any mismanagement of the 
engineers, or other employees thereof, and in consequence of the willful 
wrongs, whether of commission or omission, of such agents, engineers, or 
other employees, when such wrongs are in any manner connected with the 
use and operation of any railway on or about which they shall be em- 
ployed, and no contract which restricts such liability shall be legal or 
binding/ 1 

The conclusion that these statutes create a state-court damages action for 
failure to provide proper service is not a new one under Iowa law. See, 



316 OCTOBER TERM, 1980 

Opinion of the Court 450 U.S. 

court, holding that the Interstate Commerce Act wholly pre- 
empted state law as to the matters in contention, dismissed 
the action. The Iowa Court of Appeals reversed, ruling that 
state abandonment law was not pre-empted and that the 
state and federal schemes represented "complimentary [sic], 
alternative means of relief for injured parties." 6 295 N. W. 



e. g., Baird Bros. v. Minneapolis & St. L. R., 181 Iowa 1104, 165 N. W. 
412 (1917). 

After respondent filed its state-court action, petitioner sought to remove 
the case to federal court, but the federal court, finding that diversity of 
citizenship was lacking, remanded the case to state court. The Iowa 
Court of Appeals correctly held that this federal-court ruling had no rele- 
vance to its inquiry into whether the pre-emption doctrine barred the state 
courts from exercising their jurisdiction. 295 N. W. 2d 467, 468-469 
(1979). See Brancadora v. Federal Nat. Mortgage Assn., 344 F. 2d 933, 
935 (CA9 1965); Alaska v. K & L Distributors, Inc., 318 F. 2d 498, 
(CA9 1963). 

G The Iowa court also held the doctrine of primary jurisdiction, in the 
sense of initial deferral to the expertise of the Commission, had no appli- 
cation to this litigation. 295 N. W. 2d, at 471-472. Petitioner, as well 
as the United States and the Commission as amid curiae, argues that 
the primary-jurisdiction doctrine precludes respondent's suit on the facts 
of this case, but we have no occasion to address that question. Although 
we agree with petitioner and amid that the Commission has special ex- 
pertise in the matters respondent wishes to raise in state court, see injra, 
Sit 326-327, and n. 14, we do not rely on the primary-jurisdiction doctrine. 
As we have stated in interpreting another provision of the Interstate Com- 
merce Act: "[T]he survival of a judicial remedy . . . cannot be determined 
on the presence or absence in the Commission of primary jurisdiction to 
decide the basic question on which relief depends. Survival depends on 
the effect of the exercise of the remedy upon the statutory scheme of regu- 
lation/' Hewitt-Robins Inc. v. Eastern Freight-Ways, Inc., 371 U. S. 84, 
89 (1962). Even if the primary-jurisdiction doctrine were applicable 
here, it would at best require the state courts to postpone any action until 
the Commission had an opportunity to address the administrative ques- 
tions raised in the civil damages action. But here, the Commission has 
actually ruled, and the state trial on liability and damages has not yet 
taken place. Consequently, the requirements of the doctrine have been 
complied with in spirit, even if not through any intent of respondent. 
We save for a later case a decision on the proper application of the pri- 
mary-jurisdiction doctrine when the Commission has not yet ruled. 



CHICAGO & N. W. TR CO. v. KALO BRICK & TILE CO. 317 
311 Opinion of the Court 

2d 467, 469 (1979). After the Supreme Court of Iowa denied 
petitioner's application for review, we granted certiorari, 446 
U. S. 951 (1980). We reverse. 

II 

Pre-emption of state law by federal statute or regulation 
is not favored "in the absence of persuasive reasons either 
that the nature of the regulated subject matter permits no 
other conclusion, or that the Congress has unmistakably so 
ordained." Florida Lime & Avocado Growers, Inc. v. Paul, 
373 U. S. 132, 142 (1963). See De Canas v. Bica, 424 U. S. 
351, 356 (1976). The underlying rationale of the pre- 
emption doctrine, as stated more than a century and a half ago, 
is that the Supremacy Clause invalidates state laws that "inter- 
fere with or are contrary to, the laws of congress . . . ." Gib- 
bons v. Ogden, 9 Wheat. 1, 211 (1824). The doctrine does 
not and could not in our federal system withdraw from the 
States either the "power to regulate where the activity regu- 
lated [is] a merely peripheral concern" of federal law, San 
Diego Building Trades Council v. Garmon, 359 U. S. 236, 243 
(1959), or the authority to legislate when Congress could 
have regulated "a distinctive part of a subject which is pecu- 
liarly adapted to local regulation, . . . but did not," Hines v. 
Davidowitz, 312 U. S. 52, 68, n. 22 (1941). But when Con- 
gress has chosen to legislate pursuant to its constitutional 
powers, then a court must find local law pre-empted by fed- 
eral regulation whenever the "challenged state statute 'stands 
as an obstacle to the accomplishment and execution of the 
full purposes and objectives of Congress/ " Perez v. Camp- 
bell, 402 TJ. S. 637, 649 (1971), quoting Hines v. Davidowitz, 
supra, at 67. Making this determination "is essentially a 
two-step process of first ascertaining the construction of the 
two statutes and then determining the constitutional ques- 
tion whether they are in conflict." Perez v. Campbell, supra, 
at 644. And in deciding whether any conflict is present, a 
court's concern is necessarily with "the nature of the activities 



318 OCTOBER TERM, 1980 

Opinion of the Court 450 U.S. 

which the States have sought to regulate, rather than on the 
method of regulation adopted." San Diego Building Trades 
Council v. Garmon, supra, at 243. 

The Interstate Commerce Act is among the most pervasive 
and comprehensive of federal regulatory schemes and has 
consequently presented recurring pre-emption questions from 
the time of its enactment. Since the turn of the century, 
we have frequently invalidated attempts by the States to 
impose on common carriers obligations that are plainly in- 
consistent with the plenary authority of the Interstate Com- 
merce Commission or with congressional policy as reflected 
in the Act. These state regulations have taken many forms. 
For example, as early as 1907, the Court struck down a 
State's common-law cause of action to challenge as unrea- 
sonable a rail common carrier's rates because rate regulation 
was within the exclusive jurisdiction of the Commission, and 
a state-court action "would be absolutely inconsistent with 
the provisions of the act." Texas & Pacific R. Co. v. Abilene 
Cotton Oil Co., 204 TJ. S. 426, 446. Similarly, in Transit 
Comm'n v. United States, 289 U. S. 121, 129 (1933), we held 
that the Interstate Commerce Commission's statutory au- 
thority to regulate extensions of service was exclusive and 
therefore stripped a similar state commission of all power to 
act in the same area. More recently, in Chicago v. Atchison, 
T. & S. F. R. Co., 357 U. S. 77 (1958), we held that a city 
ordinance requiring a license from a municipal authority 
before a railroad could transfer passengers, an activity also 
subject to regulation under the Interstate Commerce Act, 
was facially invalid as applied to an interstate carrier. "[I]t 
would be inconsistent with [federal] policy," we observed, 
"if local authorities retained the power to decide" whether 
the carriers could do what the Act authorized them to do. 
Id., at 87. The common rationale of these cases is easily 
stated: "[T]here can be no divided authority over interstate 
commerce, and . . . the acts of Congress on that subject are 
supreme and exclusive." Missouri Pacific R. Co. v. Stroud, 



CHICAGO & N. W. TR. CO. v. KALO BRICK & TILE CO. 319 
311 Opinion of the Court 

267 TL S. 404, 408 (1925). Consequently, state efforts to 
regulate commerce must fall when they conflict with or inter- 
fere with federal authority over the same activity. 

Ill 

In deciding whether respondent's state-law damages action 
is pre-empted, we must determine what Congress has said 
about a carrier's ability to abandon a line, what Iowa state 
law provides on the same subject, and whether the two are 
inconsistent. To these tasks we now turn. 



The Interstate Commerce Commission has been endowed 
by Congress with broad power to regulate a carrier's perma- 
nent or temporary cessation of service over lines used for 
interstate commerce. Under 1 (4) and 1 (11) of the In- 
terstate Commerce Act, recodified at 49 U. S. C. 11101 (a) 
and 11121 (a) (1976 ed., Supp. Ill), 7 the Commission is em- 
powered both to pass on the reasonableness of a carrier's 
temporary suspension of its service and, if necessary, to order 
it resumed. See ICC v. Chicago & N. W. Transp. Co., 533 
F. 2d 1025, 1027, n. 2 (CAS 1976) ; ICC v. Maine Central R. 
Co., 505 F. 2d 590, 593-594 (CA2 1974). In addition, and 
most relevant here, the Act endows the Commission with 
broad authority over abandonments, or permanent cessations 
of service. 

The Commission's power to regulate abandonments by rail 
carriers stems from the Transportation Act of 1920, ch. 91, 



7 Under Pub. L. 95-473, 92 Stat. 1337, the Interstate Commerce Act 
and its various amendments have been completely recodified as Sub- 
title IV of Title 49 of the United States Code. In the main, this recodi- 
fication is without substantive change. In this opinion, we cite to the 
original Act for ease in referring to the decision below and to our prec- 
edents. Where appropriate, we also give parallel cites to the Act as 
recodified. 



320 OCTOBER TERM, 1980 

Opinion of the Court 450 II. S. 

41 Stat. 477-478, which added to the Interstate Commerce 
Act a new 1 (18), recodified at 49 U. S. C. 10903 (a) (1976 
ed., Supp. Ill), That section stated in pertinent part: 

"[N]o carrier by railroad subject to this chapter shall 
abandon all or any portion of a line of railroad, or the 
operation thereof, unless and until there shall first have 
been obtained from the Commission a certificate that the 
present or future public convenience and necessity per- 
mit of such abandonment." 

This section, we have said, must be "construed to make fed- 
eral authority effective to the full extent that it has been 
exerted and with a view of eliminating the evils that Con- 
gress intended to abate/ 7 Transit Comm'n v. United States, 
supra, at 128. Among those evils is "[m]ultiple control in 
respect of matters affecting [interstate railroad] transporta- 
tion," because such control, in the judgment of Congress, has 
proved "detrimental to the public interest." 289 U. S., at 
127. See Chicago v. Atchison, T. & S. F. R. Co., supra, at 87. 
Consequently, we have in the past concluded that the au- 
thority of the Commission to regulate abandonments is ex- 
clusive. Alabama Public Service Comm'n v. Southern R. 
Co., 341 U. S. 341, 346, n. 7 (1951). See Colorado v. United 
States, 271 TJ. S. 153, 164-166 (1926). The Commission's 
authority over abandonments is also plenary. So broad is 
this power that it extends even to approval of abandonment 
of purely local lines operated by regulated carriers when, in 
the Commission's judgment, "the over-riding interests of in- 
terstate commerce requir[e] it." Palmer v. Massachusetts, 
308 TJ. S. 79, 85 (1939). The broad scope of the Commis- 
sion's authority under 1 (18) has been clear since the Court 
first interpreted that provision in Colorado v. United States, 
supra. There, the Court rejected a challenge by the State 
of Colorado to the power of the Commission to grant a cer- 
tificate permitting an abandonment of a wholly intrastate 



CHICAGO & N. W. TR. CO. v. KALO BRICK & TILE CO. 321 
311 Opinion of the Court 

branch line operated by an interstate carrier. Justice Bran- 
deis wrote for the Court: 

"Congress has power to assume not only some control, 
but paramount control, insofar as interstate commerce 
is involved. It may determine to what extent and in 
what manner intrastate service must be subordinated in 
order that interstate service may be adequately rendered. 
The power to make the determination inheres in the 
United States as an incident of its power over interstate 
commerce. The making of this determination involves 
an exercise of judgment upon the facts of the particular 
case. The authority to find the facts and to exercise 
thereon the judgment whether abandonment is consistent 
with public convenience and necessity, Congress con- 
ferred upon the Commission." 271 U. S., at 166-166. 

The exclusive and plenary nature of the Commission's au- 
thority to rule on carriers' decisions to abandon lines is 
critical to the congressional scheme, which contemplates com- 
prehensive administrative regulation of interstate commerce. 
In deciding whether to permit an abandonment, the Commis- 
sion must balance "the interests of those now served by the 
present line on the one hand, and the interests of the carrier 
and the transportation system on the other." Purcell v. 
United States, 315 U. S. 381, 384 (1942). Once the Com- 
mission has struck that balance, its conclusion is entitled to 
considerable deference. "The weight to be given to cost of 
a relocated line as against the adverse effects upon those 
served by the abandoned line is a matter which the experi- 
ence of the Commission qualifies it to decide. And, under 
the statute, it is not a matter for judicial redecision." Id., 
at 385. 

The breadth of the Commission's statutory discretion sug- 
gests a congressional intent to limit judicial interference with 
the agency's work. The Act in fact spells out with consider- 
able precision the remedies available to a shipper who is 



322 OCTOBER TERM, 1980 

Opinion of the Court 450 TJ. S. 

injured either by the Commission's approval of an abandon- 
ment or by a carrier's abandoning a line without securing 
Commission approval. A shipper objecting to an abandon- 
ment may ask the Commission to investigate the carrier's 
action. 13 (1), recodified at 49 TJ. S. C. 11701 (b) (1976 
ed., Supp. III). A shipper may also oppose any request for 
abandonment filed before the Commission. 49 CFR 1121.36 
(1980).* If ultimately dissatisfied with the Commission's ac- 
tion, a shipper may seek review of its action in the appropri- 
ate court of appeals, 28 U. S. C. 2321 (a), 2342 (5). In 
addition, at the time that this action was filed in state court, 
1 (20) of the Act expressly provided that a shipper be- 
lieving a carrier's abandonment was unlawful could seek an 
injunction against it. 9 There is no provision in the Act for a 
civil damages action against a carrier for an abandonment 

8 A carrier who files an application for a certificate permitting aban- 
donment must make reasonable efforts to give notice to all shippers who 
have used the line in the past 12 months. 49 U. S. C. 10904 (a) (3) (D) 
(1976 ed., Supp. III). See In re Chicago, M., St. P. & P. R. Co., 611 
F. 2d 662, 668 (CAT 1979). 

Section 1 (20), which was, like 1 (18), added by the Transportation 
Act of 1920, provided that "any court of competent jurisdiction" could 
enjoin a carrier's abandonment of a line when application for approval has 
not been made to the Commission. The right of a private party to seek 
an injunction was repealed by the Railroad Revitalization and Regulatory 
Reform Act of 1976, Pub. L. 9^-210, 90 Stat. 127-130. Under the Act 
as amended and recodified, only the United States, the government of a 
State, or the Commission itself may sue to enjoin most illegal abandon- 
ments. See 49 U. S. C. 11505 (action by state), 11702 (action by the 
Commission), 11703 (action by the United States) (1976 ed., Supp. III). 
A private person may seek injunctive relief only to prevent illegal aban- 
donment of a freight-forwarding service. See 49 U. S. C. 11704 (1976 
ed., Supp. III). The fact that shippers in the position of respondent no 
longer have available the remedy of injunction does not affect our decision, 
because numerous other remedies for improper cessations of service still 
exist. "[T]he absence of any judicial remedy [would] plac[e] the shipper 
entirely at the mercy of the carrier, contrary to the overriding purpose 
of the Act." Hewitt-Robins, Inc. v. Eastern Freight-Ways, Inc., 371 U. S., 
at 88 (emphasis added). 



CHICAGO & N. W. TR. CO. v. KALO BRICK & TTLE CO. 323 

311 Opinion of the Court 

that has been approved by the Commission. 10 The structure 
of the Act thus makes plain that Congress intended that an 
aggrieved shipper should seek relief in the first instance from 
the Commission. 

In sum, the construction of the applicable federal law is 
straightforward and unambiguous. Congress granted to the 
Commission plenary authority to regulate, in the interest of 
interstate commerce, rail carriers' cessations of service on 
their lines. And at least as to abandonments, this authority 
is exclusive. 

Equally clear are the meanings of the state statutory and 
common-law obligations that petitioner seeks to challenge. 
The Iowa Court of Appeals held that Iowa Code 479.3 and 
479.122 (1971) "impos[e] on the railroads the unqualified 
and unconditional duty to furnish car service and transporta- 
tion to all persons who apply," and that this state-law duty 
was not pre-empted by the provisions of the Interstate Com- 
merce Act imposing a similar duty. 295 N. W. 2d, at 469. 
According to respondent's complaint in the state court, peti- 
tioner's failure to carry out these "duties of a common car- 
rier" injured it in the amount of $350,000. App. 78. The 
state court also held that respondent could maintain its causes 
of action for common-law negligence based on petitioner's 
alleged failure to maintain the roadbed and for common-law 
tort for purported interference with contractual relations 

10 Although 8 and 9, recodified at 49 TI. 8. C. 11705 (1976 ed., Supp. 
Ill), provide a general right to seek damages when injured by a car- 
rier's violation of the Act, this Court stated in Powell v. United States, 
300 U. S. 276, 287 (1937), that the injunctive remedy, see n. 9, supra, 
was "the only method for enforcing" what was then 1 (18) of the Act. 
Because the carrier's actions here have been approved by the Commission, 
there has been no violation of the Act, and this damages remedy could 
have no application to this case. We therefore need not decide whether 
the language of Powell means that a damages action can never be brought 
for an illegal abandonment, or if such an action can be brought, whether 
Congress might have intended that state and federal courts have con- 
current jurisdiction. We thus reserve those questions for a proper case. 



324 OCTOBER TERM, 1980 

Opinion of the Court 450 U.S. 

with respondent's customers. 295 N. W. 2d, at 471-472. 
The negligence count as outlined in respondent's complaint 
claimed $150,000 in damages based on petitioner's alleged 
failure "to maintain the track in a proper manner" and "to 
properly maintain the railroad right-of-way." App. 79-80. 
The tort count alleged that "at all times material hereto, it 
was the avowed and publicized purpose of [petitioner] to 
close all unproductive lines under its control/' and that this 
plan interfered with respondent's contracts and damaged it 
in the amount of $100,000. Id., at 81. These, then, are the 
claims that the Iowa Court of Appeals held properly cogniza- 
ble in the state courts. 

B 

Armed with these authoritative constructions of both the 
federal regulatory scheme and the state law, we must next 
determine whether they conflict. The Iowa Court of Appeals 
held that the two remedies for abandonment merely comple- 
mented one another. We disagree. Both the letter and the 
spirit of the Interstate Commerce Act are inconsistent with 
Iowa law as construed by that court. The decision below 
amounts to a holding that a State can impose sanctions upon 
a regulated carrier for doing that which only the Commission, 
acting pursuant to the will of Congress, has the power to de- 
clare unlawful or unreasonable. Cf. Chicago v. Atchison, 
T. & 8. F. R. Co., 357 U. S., at 87. It is true that not one 
of the three counts of respondent's state-court complaint 
mentions the word "abandonment," but compliance with the 
intent of Congress cannot be avoided by mere artful pleading. 
It is difficult to escape the conclusion that the instant litiga- 
tion represents little more than an attempt by a disappointed 
shipper to gain from the Iowa courts the relief it was denied 
by the Commission. 11 



The fact that respondent did not perfect its filing before the Commis- 
sion, see n. 3, supra, does not affect either the validity or the finality of 



CHICAGO & N. W. TR. CO. v. KALO BRICK & TILE CO. 326 
311 Opinion of the Court 

Respondent's main cause of action alleges an improper 
failure to furnish cars on the Kalo-Fort Dodge branch line. 
In Missouri Pacific R. Co. v. Stroud, 267 U. S. 404 (1925), 
this Court confronted the precise question whether a state- 
court damages action would lie for a carrier's failure to 
furnish cars to carry a shipper's goods in interstate com- 
merce. 12 The Court held that because the lumber shipped 
by the carrier moved in interstate, rather than intrastate, 
commerce, "[t]he state law has no application . . . ." Id., at 
408. In the instant case, the bricks that respondent here 
shipped in petitioner's cars, like the lumber in Missouri 
Pacific, were moving in interstate commerce. 13 Respondent 
in essence seeks to use state law to compel petitioner to 
furnish cars in spite of the congressional decision to leave 
regulation of car service to the Commission. But "[t]he 
duty to provide cars is not absolute," and the law " 'exacts 
only what is reasonable of the railroads under the existing 
circumstances.' " Milmine Grain Co. v. Norfolk & Western 
R. Co., 352 I. C. C. 575, 585 (1976), citing Elgin Coal Co. v. 
Louisville & Nashville R. Co., 277 F. Supp. 247, 250 (ED 
Tenn. 1967). See Midland Valley R. Co. v. Barkley, 276 
TL S. 482, 484 (1928). The judgment as to what constitutes 
reasonableness belongs exclusively to the Commission. Cf. 
Purcell v. United States, 315 II. S., at 384-385. It would 
vitiate the overarching congressional intent of creating "an 
efficient and nationally integrated railroad system," ICC v. 



the Commission's findings with respect to the reasonableness of peti- 
tioner's actions. These findings remain valid if supported by substantial 
evidence, see Illinois Central R. Co. v. Norfolk & Western R. Co., 385 
U. S. 57, 66 (1966), and in any case are not ordinarily subject to revision 
via collateral attack in a civil action. 

12 The Commission's authority over furnishing cars was reflected in 
1 (4) and 1 (11) of the Act, recodified at 49 II. S. C. 11101 (a) and 
11121 (a) (1976 ed., Supp. III). 

18 See n. 1, supra. 



326 OCTOBER TERM, 1980 

Opinion of the Court 450 U.S. 

Railway Labor Executives Assn., 315 U. S. 373, 376 (1942), 
to permit the State of Iowa to use the threat of damages to 
require a carrier to do exactly what the Commission is em- 
powered to excuse. A system under which each State could, 
through its courts, impose on railroad carriers its own version 
of reasonable service requirements could hardly be more at 
odds with the uniformity contemplated by Congress in enact- 
ing the Interstate Commerce Act. 

The conclusion that a suit under state law conflicts with 
the purposes of the Act is merely bolstered when, as here, 
the Commission has actually approved the abandonment. 
In reaching its decision, the Commission expressly found 
that "the cessation of service occurred because of conditions 
over which [petitioner] had no control." App. to Pet. for 
Cert. 35a. Because Congress granted the exclusive discretion 
to make such judgments to the Commission,- there is no fur- 
ther role that the state court could play. Even though the 
approval did not come until after respondent filed its civil 
suit, it would be contrary to the language of the statute to per- 
mit litigation challenging the lawfulness of the carrier's ac- 
tions to go forward when the Commission has expressly found 
them to be reasonable. See 49 U. S. C. 1 (17) (a), recodi- 
fied at 49 U. S. C. 10501 (c) (1976 ed., Supp. III). We 
therefore hold that Iowa's statutory cause of action for fail- 
ure to furnish cars cannot be asserted against an interstate 
rail carrier on the facts of this case. 

The same reasoning applies to respondent's other asserted 
causes of action, because they, too, are essentially attempts 
to litigate the issues underlying petitioner's abandonment of 
the Kalo-Fort Dodge line. The questions respondent seeks 
to raise in the state court whether roadbed maintenance 
was negligent or reasonable and whether petitioner aban- 
doned its line with some tortious motive are precisely the 
sorts of concerns that Congress intended the Commission to 
address in weighing abandonment requests from the carriers 



CHICAGO & N. W. TR. CO. v. KALO BRICK & TILE CO. 327 
311 Opinion of the Court 

subject to its regulation. 14 See Pur cell v. United States, 
supra, at 385; Chesapeake & Ohio R. Co. v. United States, 
283 U. S. 35, 42 (1931). That alone might be enough to 
prohibit respondent from raising them in a state court. Cf. 
Pennsylvania R. Co. v. Clark Bros. Coal Mining Co., 238 
U. S. 456, 469 (1915) (no damages action may be brought 
for car distribution practices until Commission has ruled 
them unlawful). 

But we need not decide whether a state-court suit is barred 
when the Commission is empowered to rule on the underlying 
issues, because here the Commission has actually addressed 
the matters respondent wishes to raise in state court. The 
Commission's order approving the abandonment application 
found that after the first two landslides, petitioner "made 
necessary repairs to enable continuation of service," that fur- 
ther repairs after the 1967 slide would not have been "suffi- 
cient to insure continuous operations," that the abandonment 
was not "willful/ 1 that respondent has no right to "insist that 
a burdensome line be maintained solely for its own use," and 
that "continued operation of the line would be an unnecessary 
burden on [petitioner] and on interstate commerce." App. 
to Pet. for Cert. 35a-36a. These findings by the Commission, 
made pursuant to the authority delegated by Congress, sim- 
ply leave no room for further litigation over the matters re- 
spondent seeks to raise in state court. Consequently, we hold 
that on the facts of this case, the Interstate Commerce Act 
also pre-empts Iowa's common-law causes of action for dam- 
ages stemming from a carrier's negligence and tort when the 
judgments of fact and of reasonableness necessary to the deci- 
sion have already been made by the Commission. 

14 Most of the Commission's abandonment decisions turn in part on 
factors such as those respondent wishes the state court to decide. See, 
e. g., Chicago & N. W. Transp. Co. Abandonment, 354 I. C. C. 121, 125- 
126 (1977); Baltimore & Annapolis R. Co. Abandonment, 348 I. C. C. 
678, 700-703 (1976) ; Missouri Pacific R. Co. Abandonment, 342 I. C. C. 
643, 644 (1972). 



328 OCTOBER TERM, 1980 

Opinion of the Court 450 U.S. 

Nothing in our decision in Pennsylvania R. Co. v. Puritan 
Coal Mining Co., 237 IT. S. 121 (1915), compels a contrary 
result. But because both respondents and the Iowa Court 
of Appeals rely heavily on its language, we discuss the case 
in some detail. In Puritan, this Court was called upon for 
the first time to interpret what was then 22 of the Inter- 
state Commerce Act as it related to a carrier's duty to fur- 
nish cars. That section, which survives without substantive 
change in the Act as recodified, 15 provided that nothing in 
the Act "shall in any way abridge or alter the remedies now 
existing at common law or by statute, but the provisions of 
this act are in addition to such remedies/' Relying on this 
language, this Court held that a shipper could pursue its 
state common-law remedies for failure to provide cars when 
the carrier had previously agreed to provide them, as long 
as "there is no administrative question involved." Id., at 
131-132. Without this provision, the opinion explained, "it 
might have been claimed that, Congress having entered the 
field, the whole subject of liability of carrier to shippers in 
interstate commerce had been withdrawn from the jurisdic- 
tion of the state courts," so 22 was added to make plain 
that the Act "was not intended to deprive the state courts 
of their general and concurrent jurisdiction." Id., at 130. 
The Iowa Court of Appeals relied on this broad-sounding 
language in concluding that respondent's causes of action 
survived the enactment of and the various amendments to 
the Interstate Commerce Act. Respondent urges essentially 
the same point in this Court. 

This analysis fails to take into account the fact that the 
Commission's exclusive jurisdiction over abandonments arises 
from the Transportation Act of 1920, and its authority over 
car service from the Esch Car Service Act, ch. 23, 40 Stat. 
101. Our decision in Puritan preceded these amendments to 
the Interstate Commerce Act, so it can hardly be viewed as 

15 See 49 TJ. S. C. 10103 (1976 ed., Supp. HI). 



CHICAGO & N. W. TR. CO. v. KALO BRICK & TILE CO. 
311 Opinion of the Court 

an authoritative construction of the Act as amended. 16 And 
even assuming for the sake of argument the continuing valid- 
ity of that opinion's reasoning, it does not control the disposi- 
tion of the instant case. The Court in Puritan expressly 
noted that the matters presented to the state courts for deci- 
sion involved no questions of law or questions calling for an 
administrative judgment, and, in particular, no issue as to 
the reasonableness of the carrier 's policies. 237 U. S., at 131- 
132. Instead, the state court was called upon to decide only 
the factual question whether the railroad had carried out the 
duties that it had agreed to undertake. The Court's opinion 
in Puritan recognized the importance of this distinction: 

"[I]t must be borne in mind that there are two forms 
of discrimination, one in the rule and the other in the 
manner of its enforcement; one in promulgating a dis- 
criminatory rule, the other in the unfair enforcement of 
a reasonable rule. In a suit where the rule of practice 
itself is attacked as unfair or discriminatory, a question 
is raised which calls for the exercise of the judgment 
and discretion of the administrative power which has 
been vested by Congress in the Commission. . . . Until 
that body has declared the practice to be discriminatory 
and unjust, no court has jurisdiction of a suit against 
an interstate carrier for damages occasioned by its en- 
forcement. . . . 

"But if the carrier's rule, fair on its face, has been un- 
equally applied, and the suit is for damages, occasioned 
by its violation or discriminatory enforcement, there is 

10 The Transportation Act of 1920, moreover, also added to the Inter- 
state Commerce Act a new 1 (17) (a), recodified at 49 U. S. C. 10501 
(c) (1976 ed., Supp. Ill), which expressly invalidates state remedies when 
they are "inconsistent with an order of the Commission" or prohibited 
under any provision of the Act. See supra, at 326. The Puritan Court 
obviously could not have considered this provision when deciding that a 
shipper could in some circumstances bring a state-court action for failure 
to furnish cars. 



330 OCTOBER TERM, 1980 

Opinion of the Court 450 U.S. 

no administrative question involved, the courts being 
called upon to decide a mere question of fact." Ibid. 
Here, we face the reverse of the situation that gave rise 
to the Puritan case. The questions presented to the state 
court in the instant litigation all involve evaluations of the 
reasonableness of petitioner's abandonment of the branch 
line. These issues call for the type of administrative evalua- 
tions and conclusions that Congress has entrusted to the in- 
formed discretion of the Commission. See Midland Valley 
R. Co., v. Barkley, 276 U. S., at 484-486; Great Northern R. 
Co. v. Merchants Elevator Co., 259 U. S. 285, 291 (1922). 
Under the Puritan analysis, "no court has jurisdiction" of a 
suit such as respondent's until the Commission 'lias declared 
the practice to be ... unjust." 237 U. S., at 131. And the 
Commission, in an exercise of its discretion, has done pre- 
cisely the opposite; it has decided that the abandonment was 
proper. 17 Respondent has chosen not to seek judicial review 
of the Commission's judgment through the means provided 
by Congress. 18 For all of these reasons, to the extent that 



17 The court below apparently recognized the distinction for jurisdic- 
tional purposes between state-court actions raising strictly factual claims 
and those calling for an exercise of administrative discretion. See 295 
N. W. 2d, at 472. If it is assumed that Puritan remains good law, then 
the state court erred only in concluding that a suit such as respondent's 
raises only questions of fact that do not call for any expertise. Respondent 
itself concedes that even under its theory of the case, "the sole issue for 
determination is whether or not the service was terminated by compelling 
circumstances beyond the control of the carrier." Brief for Respondent 6 
(emphasis in original). That is exactly the kind of question Congress 
intended that the Commission decide, and in the case before us, the 
Commission has of course already decided it. 

18 Respondent's reliance on ICC v. Chicago & N. W. Transp. Co., 533 
P. 2d 1025 (CAS 1976), is also misplaced. That case held only that a 
federal-court suit seeking injunctive relief on behalf of the Commission, 
which is among the express remedies enumerated in the Act, could go 
forward without awaiting the Commission's decision on a pending re- 
quest for an abandonment. We express no opinion as to the merits of 



CHICAGO & N. W. TR. CO. v. KALO BRICK & TILE CO. 331 
311 Opinion of the Court 

the Puritan analysis has any application here, it supports 
petitioner's and the Commission's arguments that the Iowa 
courts lack jurisdiction to entertain respondent's suit for 
damages arising from petitioner's abandonment of the Kaio- 
Fort Dodge branch line. 

Our decision today does not leave a shipper in respondent's 
position without a remedy if it is truly harmed. On the 
contrary, an aggrieved shipper is still free to pursue the ave- 
nues for relief set forth in the statute. Respondent could 
have gone to the Commission and challenged petitioner's re- 
fusal to provide service before any abandonment application 
was filed, but it did not. After petitioner filed its request 
for a certificate, respondent had the opportunity to present 
evidence to the Commission in support of its allegation, but 
failed to do so. Having lost its battle there, respondent 
could have followed the congressionally prescribed path by 
seeking review in the appropriate United States court of ap- 
peals. This, too, respondent failed to do. The Act creates 
no other express remedies for a shipper who is damaged by a 
carrier's abandonment of a line. In particular, nothing in 
the Act suggests that Congress contemplated permitting a 
shipper to bring a civil damages action in state court. And 
such a right to sue, with its implied threat of sanctions for 
failure to comply with what the courts of each State con- 
sider reasonable policies, is plainly contrary to the purposes 
of the Act. We are thus not free to assume that it has been 
preserved. 

IV 

We hold that the Interstate Commerce Act precludes a 
shipper from pressing a state-court action for damages against 
a regulated carrier when the Interstate Commerce Commis- 
sion, in approving the carrier's application for abandonment, 
reaches the merits of the matters the shipper seeks to raise 

that case, but we do note that its facts bear little relation to those before 
us. 



332 OCTOBER TERM, 1980 

Opinion of the Court 450 TJ. S. 

in state court. We reserve for another day the question 
whether such a cause of action lies when no application is 
made to the Commission. The judgment of the Iowa Court 
of Appeals is reversed, and the case is remanded for further 
proceedings not inconsistent with this opinion. 

So ordered. 



ALBERNAZ v. UNITED STATES 333 

Syllabus 

ALBERNAZ ET AL. v. UNITED STATES 

CERTIORARI TO THE UNITED STATES COUKT OF APPEALS FOR TECE 

FIFTH CIRCUIT 

No. 79-1709. Argued January 19, 1981 Decided March 9, 1981 

Petitioners, who were involved in an agreement to import marihuana and 
then to distribute it domestically, were convicted on separate counts of 
conspiracy to import marihuana, in violation of 21 TL S. C. 963, and 
conspiracy to distribute marihuana, in violation of 21 U. S. C. 846. 
These statutes are parts of different subchapters of the Comprehensive 
Drug Abuse Prevention and Control Act of 1970. Petitioners received 
consecutive sentences on each count, the length of each of their com- 
bined sentences exceeding the maximum which could have been imposed 
either for a conviction of conspiracy to import or for a conviction of 
conspiracy to distribute. The Court of Appeals affirmed the convic- 
tions and sentences. 

Held: 

1. Congress intended to permit the imposition of consecutive sen- 
tences for violations of 846 and 963 even though such violations 
arose from a single agreement or conspiracy having dual objectives. 
Pp. 336-343. 

(a) In determining whether Congress intended to authorize cumu- 
lative punishments, the applicable rule, announced in Blockburger v. 
United States, 284 IT, S. 299, 304, is that "where the same act or trans- 
action constitutes a violation of two distinct statutory provisions, the 
test to be applied to determine whether there are two offenses or only 
one, is whether each provision requires proof of a fact which the other 
does not." The statutory provisions involved here specify different ends 
as the proscribed object of the conspiracy "distribution" and "importa- 
tion" and clearly satisfy the Blockburger test. Each provision re- 
quires proof of a fact that the other does not, and thus 846 and 963 
proscribe separate statutory offenses the violations of which can result 
in the imposition of consecutive sentences. Braverman v. United States, 
317 U. S. 49, distinguished. Pp. 337-340. 

(b) While the Blockburger test is not controlling where there is a 
dear indication of contrary legislative intent, if anything is to be as- 
sumed from the legislative history's silence on the question whether 
consecutive sentences can be imposed for a conspiracy to import and 
distribute drugs, it is that Congress was aware of the Blockburger rule 



334 OCTOBER TERM, 1980 

Opinion of the Court 450 U.S. 

and legislated with it in mind. And the rule of lenity has no applica- 
tion in this case, since there is no statutory ambiguity. Pp. 34CMB43. 
2. The imposition of consecutive sentences for petitioners' violations 
of 846 and 963 does not violate the Double Jeopardy Clause of the 
Fifth Amendment. In determining whether punishments imposed after 
a conviction are unconstitutionally multiple, the dispositive question is 
whether Congress intended to authorize separate punishments for the 
crimes. Where Congress intended, as it did here, to impose multiple 
punishments, imposition of such sentences does not violate the Con- 
stitution. Pp. 343-344. 

612 F. 2d 906, affirmed. 

REHNQTHST, J., delivered the opinion of the Court, in which BURGER, 
C. J., and BRENNAN, WHITE, BLACKMTTN, and POWELL, JJ., joined. 
STEWART, J., filed an opinion concurring in the judgment, in which 
MARSHALL and STEVENS, JJ., joined, post, p. 344. 

Judith H. Mizner argued the cause for petitioners. With 
her on the briefs were Martin G. Weinberg and Raymond 
E. LaPorte. 

Mark I. Levy argued the cause for the United States. 
With him on the brief were Solicitor General McCree, Assist- 
ant Attorney General Heymann, Deputy Solicitor General 
Prey, and Mervyn Hamburg. 

JUSTICE REHNQUIST delivered the opinion of the Court. 

Petitioners were convicted of conspiracy to import mari- 
huana (Count I), in violation of 21 TL S. C. 963, and con- 
spiracy to distribute marihuana (Count II), in violation of 
21 U. S. C. 846. Petitioners received consecutive sentences 
on each count. The United States Court of Appeals for the 
Fifth Circuit, sitting en bane, affirmed petitioners' convic- 
tions and sentences. United States v. Rodriguez, 612 F. 2d 
906 (1980). We granted certiorari to consider whether Con- 
gress intended consecutive sentences to be imposed for the 
violation of these two conspiracy statutes and, if so, whether 
such cumulative punishment violates the Double Jeopardy 



ALBERNAZ v. UNITED STATES 335 

333 Opinion of the Court 

Clause of the Fifth Amendment of the United States Consti- 
tution. 449 U. S. 818 (1980). 

The facts forming the basis of petitioners' convictions are 
set forth in the panel opinion of the Court of Appeals, United 
States v. Rodriguez, 585 F. 2d 1234 (1978), and need not be 
repeated in detail here. For our purposes, we need only re- 
late that the petitioners were involved in an agreement, the 
objectives of which were to import marihuana and then to 
distribute it domestically. Petitioners were charged and con- 
victed under two separate statutory provisions and received 
consecutive sentences. The length of each of their com- 
bined sentences exceeded the maximum 5-year sentence which 
could have been imposed either for a conviction of conspiracy 
to import or for a conviction of conspiracy to distribute. 

The statutes involved in this case are part of the Compre- 
hensive Drug Abuse Prevention and Control Act of 1970, 84 
Stat. 1236, 21 U. S. C. 801 et seq. Section 846 is in Sub- 
chapter I of the Act and provides: 

"Any person who attempts or conspires to commit any 
offense defined in this subchapter is punishable by im- 
prisonment or fine or both which may not exceed the 
maximum punishment prescribed for the offense, the 
commission of which was the object of the attempt or 
conspiracy." 

This provision proscribes conspiracy to commit any offense 
defined in Subchapter I, including conspiracy to distribute 
marihuana which is specifically prohibited in 21 IT. S. C. 
841(a)(l). Section 846 authorizes imposition of a sen- 
tence of imprisonment or a fine that does not exceed the pen- 
alty specified for the object offense. 

Section 963, which is part of Subchapter II of the Act, 
contains a provision identical to 846 and proscribes con- 
spiracy to commit any offense defined in Subchapter II, in- 
cluding conspiracy to import marihuana which is specifically 
prohibited by 21 TJ. S. C. 960 (a)(l). As in 846, 963 



336 OCTOBER TERM, 1980 

Opinion of the Court 450 U. S. 

authorizes a sentence of imprisonment or a fine that does not 
exceed the penalties specified for the object offense. Thus, 
a conspiratorial agreement which envisages both the impor- 
tation and distribution of marihuana violates both statutory 
provisions, each of which authorizes a separate punishment. 

Petitioners do not dispute that their conspiracy to import 
and distribute marihuana violated both 846 and 963. 
Rather, petitioners contend it is not clear whether Congress 
intended to authorize multiple punishment for violation of 
these two statutes in a case involving only a single agree- 
ment or conspiracy, even though that isolated agreement 
had dual objectives. Petitioners argue that because Con- 
gress has not spoken with the clarity required for this Court 
to find an "unambiguous intent to impose multiple punish- 
ment/' we should invoke the rule of lenity and hold that the 
statutory ambiguity on this issue prevents the imposition of 
multiple punishment. Petitioners further contend that even 
if cumulative punishment was authorized by Congress, such 
punishment is barred by the Double Jeopardy Clause of the 
Fifth Amendment. 

In resolving petitioners' initial contention that Congress 
did not intend to authorize multiple punishment for viola- 
tions of 846 and 963, our starting point must be the 
language of the statutes. Absent a "clearly expressed legis- 
lative intention to the contrary, that language must ordinar- 
ily be regarded as conclusive." Consumers Product Safety 
Comm'n v. GTE Sylvania, Inc., 447 U. S. 102, 108 (1980). 
Here, we confront separate offenses with separate penalty 
provisions that are contained in distinct Subchapters of the 
Act. The provisions are unambiguous on their face and each 
authorizes punishment for a violation of its terms. Peti- 
tioners contend, however, that the question presented is not 
whether the statutes are facially ambiguous, but whether 
consecutive sentences may be imposed when convictions 
under those statutes arise from participation in a single con- 



ALBERNAZ v. UNITED STATES 337 

333 Opinion of the Court 

spiracy with multiple objectives a question raised, rather 
than resolved, by the existence of both provisions. 

The answer to petitioners' contention is found, we believe, 
in application of the rule announced by this Court in Block- 
burger v. United States, 284 U. S. 299 (1932), and most re- 
cently applied last Term in Whalen v. United States, 445 
U. S. 684 (1980). In Whalen, the Court explained that the 
"rule of statutory construction" stated in Blockburger is to be 
used "to determine whether Congress has in a given situation 
provided that two statutory offenses may be punished cumula- 
tively." 445 U. S., at 691. The Court then referenced the 
following test set forth in Blockburger: 

"The applicable rule is that where the same act or 
transaction constitutes a violation of two distinct statu- 
tory provisions, the test to be applied to determine 
whether there are two offenses or only one, is whether 
each provision requires proof of a fact which the other 
does not." Blockburger v. United States, supra, at 304. 

Our decision in Whalen was not the first time this Court 
has looked to the Blockburger rule to determine whether Con- 
gress intended that two statutory offenses be punished cumu- 
latively. We previously stated in Brown v. Ohio, 432 TJ. S. 
161, 166 (1977), although our analysis there was of necessity 
based on a claim of double jeopardy since the case came to 
us from a state court, that "[t]he established test for deter- 
mining whether two offenses are sufficiently distinguishable 
to permit the imposition of cumulative punishment was 
stated in Blockburger v. United States . . . ." Similarly, in 
lannelli v. United States, 420 U. S. 770, 785, n. 17 (1975), 
we explained: 

"The test articulated in Blockburger v. United States, 
284 U. S. 299 (1932), serves a generally similar function 
of identifying congressional intent to impose separate 
sanctions for multiple offenses arising in the course of 
a single act or transaction. In determining whether sep- 



338 OCTOBER TERM, 1980 

Opinion of the Court 450 II. S. 

arate punishment might be imposed, Blockburger re- 
quires that courts examine the offenses to ascertain 
'whether each provision requires proof of a fact which the 
other does not. 3 Id., at 304. As Blockburger and other 
decisions applying its principle reveal, . . . the Court's 
application of the test focuses on the statutory elements 
of the offense. If each requires proof of a fact that the 
other does not, the Blockburger test is satisfied, notwith- 
standing a substantial overlap in the proof offered to es- 
tablish the crimes." 

In Gore v. United States, 357 TJ. S. 386 (1958), the Court 
rejected the opportunity to abandon Blockburger as the test 
to apply in determining whether Congress intended to impose 
multiple punishment for a single act which violates several 
statutory provisions. In reaffirming Blockburger, the Court 
explained: 

"The fact that an offender violates by a single transac- 
tion several regulatory controls devised by Congress as 
means for dealing with a social evil as deleterious as it 
is difficult to combat does not make the several different 
regulatory controls single and identic.' 1 357 U. S., at 
389. 

Finally, in American Tobacco Co. v. United States, 328 
U. S. 781 (1946), defendants who had been convicted of 
conspiracy in restraint of trade in violation of 1 of the 
Sherman Act (15 TJ. S. C. 1), and conspiracy to monopolize 
in violation of 2 (15 U. S. C. 2), sought review of their 
convictions contending that separate sentences for these of- 
fenses were impermissible because there was "but one con- 
spiracy, namely, a conspiracy to fix prices." 328 TJ. S., at 
788. In rejecting this claim, the Court noted the presence 
of separate statutory offenses and then, relying on Block- 
burger, upheld the sentences on the ground that " 1 and 2 
of the Sherman Act require proof of conspiracies which are 
reciprocally distinguishable from and independent of each 



ALBERNAZ v. UNITED STATES 339 

333 Opinion of the Court 

other although the objects of the conspiracies may partially 
overlap." 328 TL S., at 788. 

The statutory provisions at issue here clearly satisfy the 
rule announced in Blockburger and petitioners do not seri- 
ously contend otherwise. Sections 846 and 963 specify dif- 
ferent ends as the proscribed object of the conspiracy 
distribution as opposed to importation and it is beyond 
peradventure that "each provision requires proof of a fact 
[that] the other does not/' Thus, application of the Block- 
burger rule to determine whether Congress has provided that 
these two statutory offenses be punished cumulatively results 
in the unequivocal determination that 846 and 963, like 
1 and 2 of the Sherman Act which were at issue in Amer- 
ican Tobacco, proscribe separate statutory offenses the viola- 
tions of which can result in the imposition of consecutive 
sentences. 

Our conclusion in this regard is not inconsistent with our 
earlier decision in Braverman v. United States, 317 U. S. 49 
(1942), on which petitioners rely so heavily. Petitioners 
argue that Blockburger cannot be used for divining legislative 
intent when the statutes at issue are conspiracy statutes. 
Quoting Braverman, they argue that whether the objective 
of a single agreement is to commit one or many crimes, it is 
in either case the agreement which constitutes the conspiracy 
which the statute punishes. "The one agreement cannot be 
taken to be several agreements and hence several conspiracies 
because it envisages the violation of several statutes rather 
than one." 317 TJ. S., at 53. Braverman, however, does not 
support petitioners' position. Unlike the instant case or this 
Court's later decision in American Tobacco, the conspiratorial 
agreement in Braverman, although it had many objectives, 
violated but a single statute. The Braverman Court specifi- 
cally noted: 

"Since the single continuing agreement, which is the 
conspiracy here, thus embraces its criminal objects, it 



340 OCTOBER TERM, 1980 

Opinion of the Court 450 U.S. 

differs from successive acts which violate a single penal 
statute and from a single act which violates two stat- 
utes. See Blockburger v. United States, 284 U. S. 299, 
301-[30]4; Albrecht v. United States, 273 U. S. 1, 11-12. 
The single agreement is the prohibited conspiracy, and 
however diverse its objects it violates but a single stat- 
ute, 37 of the Criminal Code. For such a violation, 
only the single penalty prescribed by the statute can be 
imposed." 317 U. S., at 54 (emphasis added). 

Later in American Tobacco, the Court distinguished 

Braverman : 

"In contrast to the single conspiracy described in 
[Braverman] in separate counts, all charged under the 
general conspiracy statute, . . . we have here separate 
statutory offenses, one a conspiracy in restraint of trade 
that may stop short of monopoly, and the other a con- 
spiracy to monopolize that may not be content with re- 
straint short of monopoly. One is made criminal by 1 
and the other by 2 of the Sherman Act/' 328 U. S., 
at 788. 

See also Pinkerton v. United States, 328 U. S. 640, 642-643 
(1946). 

The Blockburger test is a "rule of statutory construction," 
and because it serves as a means of discerning congressional 
purpose the rule should not be controlling where, for ex- 
ample, there is a clear indication of contrary legislative in- 
tent. Nothing, however, in the legislative history which has 
been brought to our attention discloses an intent contrary 
to the presumption which should be accorded to these stat- 
utes after application of the Blockburger test. In fact, the 
legislative history is silent on the question of whether con- 
secutive sentences can be imposed for conspiracy to import 
and distribute drugs. Petitioners read this silence as an 
"ambiguity" over whether Congress intended to authorize 



ALBERNAZ v. UNITED STATES 341 

333 Opinion of the Court 

multiple punishment. 1 Petitioners, however, read much into 
nothing. Congress cannot be expected to specifically ad- 
dress each issue of statutory construction which may arise. 
But, as we have previously noted, Congress is "predominantly 
a lawyer's body," Callanan v. United States, 364 U. S. 587, 
594 (1961), and it is appropriate for us "to assume that our 
elected representatives . . . know the law." Cannon v. Uni- 
versity of Chicago, 441 U. S. 677, 696-697 (1979). As a re- 
sult, if anything is to be assumed from the congressional 

1 Both petitioners and the Government concede that the legislative his- 
tory is silent with regard to whether Congress intended to impose mul- 
tiple punishment for a single conspiracy which violates both 846 and 
963. See Brief for Petitioners 18-19 and Brief for United States 
25. In support of their argument that this silence equals "ambiguity," 
petitioners set forth an alternative explanation for the existence of the two 
separate conspiracy statutes. Petitioners contend that these different 
statutes were enacted because two different Committees in the House of 
Representatives had jurisdiction over the different Subchapters of the 
Act. The legislation was initially referred to the House Committee on 
Ways and Means and, following hearings, that Committee decided to con- 
sider only the provisions relating to imports and exports of narcotic 
drugs, transferring the remaining provisions relating to domestic regula- 
tion and control to the Interstate and Foreign Commerce Committee. 
Petitioners argue that this background supports a conclusion that the dual 
structure of the Act was a result of congressional concern with committee 
jurisdiction and not an intent by Congress to authorize multiple punish- 
ment. The Government persuasively responds to this speculation by not- 
ing that Congress was unquestionably aware of the existence of the 
separate conspiracy provisions inasmuch as the enacted legislation evi- 
dences a great deal of coordination between the two House Committees. 
For example, Subchapter II of the Act incorporates the basic standards of 
Subchapter I and makes numerous express references to the provisions of 
that Subchapter. The Subchapters also have parallel penalty structures 
imposing similar penalties on similar crimes, and these penalties represent 
a change from both the administration's proposal and prior law. More- 
over, Congressman Boggs, the sponsor of the bill, stated when introducing 
a floor amendment to Title III (Subchapter II of the Act) that "section 
1013 [now 21 U. S. C. 963] relating to attempts and conspiracies . . . 
will take effect at the same time as the comparable provisions of title U 
[Subchapter I of the Act encompassing, inter alia, 846]." 116 Cong. 
Rec. 33665 (1970). 



342 OCTOBER TERM, 1980 

Opinion of the Court 450 U.S. 

silence on this point, it is that Congress was aware of the 
Blockburger rule and legislated with it in mind. It is not a 
function of this Court to presume that "Congress was unaware 
of what it accomplished. . . ." U. S. Railroad Retirement 
Bd. v. Fritz, 449 U. S. 166, 179 (1980). 2 

Finally, petitioners contend that because the legislative 
history is "ambiguous" on the question of multiple punish- 
ment, we should apply the rule of lenity so as not to allow 
consecutive sentences in this situation. Last Term in Bifulco 
v. United States, 447 U. S. 381 (1980), we recognized that 
the rule of lenity is a principle of statutory construction 
which applies not only to interpretations of the substantive 
ambit of criminal prohibitions, but also to the penalties they 
impose. Quoting Ladner v. United States, 358 U. S. 169, 178 
(1958), we stated: "'This policy of lenity means that the 
Court will not interpret a federal criminal statute so as to 
increase the penalty that it places on an individual when 
such an interpretation can be based on no more than a guess 
as to what Congress intended/ " 447 IT. S., at 387. We em- 
phasized that the "touchstone" of the rule of lenity "is stat- 
utory ambiguity." And we stated: "Where Congress has 
manifested its intention, we may not manufacture ambiguity 
in order to defeat that intent." Ibid. Lenity thus serves 
only as an aid for resolving an ambiguity; it is not to be used 
to beget one. The rule comes into operation "at the end of 
the process of construing what Congress has expressed, not at 
the beginning as an overriding consideration of being lenient 
to wrongdoers." Callanan v. United States, supra, at 596. 

2 The petitioners also argue that in numerous instances the Government 
has charged a single conspiracy to import and distribute marihuana in 
one count. The inconsistency in the Government's behavior supports a 
finding of an absence of clear congressional intent with regard to the 
appropriateness of multiple punishment. The Government responds to 
this argument by noting that in 1977 the Justice Department advised all 
United States Attorneys that conspiracy to import and distribute should 
be charged as separate counts. We find that neither argument sheds 
light on the intent of Congress in this regard. 



ALBERNAZ v. UNITED STATES 343 

333 Opinion of the Court 

In light of these principles, the rule of lenity simply has 
no application in this case; we are not confronted with any 
statutory ambiguity. To the contrary, we are presented with 
statutory provisions which are unambiguous on their face and 
a legislative history which gives us no reason to pause over 
the manner in which these provisions should be interpreted. 

The conclusion we reach today regarding the intent of 
Congress is reinforced by the fact that the two conspiracy 
statutes are directed to separate evils presented by drug traf- 
ficking. "Importation" and "distribution" of marihuana im- 
pose diverse societal harms, and, as the Court of Appeals 
observed, Congress has in effect determined that a conspiracy 
to import drugs and to distribute them is twice as serious 
as a conspiracy to do either object singly. 612 F. 2d, at 918. 
This result is not surprising for, as we observed many years 
ago, the history of the narcotics legislation in this country 
"reveals the determination of Congress to turn the screw of 
the criminal machinery detection, prosecution and punish- 
ment tighter and tighter." Gore v. United States, 357 U. S., 
at 390. 

Having found that Congress intended to permit the im- 
position of consecutive sentences for violations of 846 and 
963, we are brought to petitioners' argument that notwith- 
standing this fact, the Double Jeopardy Clause of the Fifth 
Amendment of the United States Constitution precludes the 
imposition of such punishment. While the Clause itself 
simply states that no person shall "be subject for the same 
offence to be twice put in jeopardy of life or limb," the deci- 
sional law in the area is a veritable Sargasso Sea which could 
not fail to challenge the most intrepid judicial navigator. 
We have previously stated that the Double Jeopardy Clause 
"protects against a second prosecution for the same offense 
after acquittal. It protects against a second prosecution for 
the offense after conviction. And it protects against mul- 
tiple punishments for the same offense." North Carolina v. 
Pearce, 395 TL S. 711, 717 (1969) (footnotes omitted). 



344 OCTOBER TERM, 1980 

STEWART, J., concurring in judgment 460 U.S. 

Last Term in Whalen v. United States, this Court stated 
that "the question whether punishments imposed by a court 
after a defendant's conviction upon criminal charges are un- 
constitutionally multiple cannot be resolved without deter- 
mining what punishments the Legislative Branch has author- 
ized." 445 TJ. S., at 688; id., at 696 (WHITE, J., concurring 
in part and concurring in judgment); ibid. (BLACKMUIXT, J., 
concurring in judgment). In determining the permissibility 
of the imposition of cumulative punishment for the crime of 
rape and the crime of unintentional killing in the course of 
rape, the Court recognized that the "dispositive question" was 
whether Congress intended to authorize separate punishments 
for the two crimes. Id., at 689. This is so because the 
"power to define criminal offenses and to prescribe punish- 
ments to be imposed upon those found guilty of them, resides 
wholly with the Congress." Ibid. As we previously noted in 
Brown v. Ohio, "[w]here consecutive sentences are imposed 
at a single criminal trial, the role of the constitutional guar- 
antee is limited to assuring that the court does not exceed its 
legislative authorization by imposing multiple punishments 
for the same offense." 432 U. S., at 165. Thus, the question 
of what punishments are constitutionally permissible is not 
different from the question of what punishments the Legisla- 
tive Branch intended to be imposed. Where Congress in- 
tended, as it did here, to impose multiple punishments, impo- 
sition of such sentences does not violate the Constitution. 3 

The judgment of the Court of Appeals is accordingly 

Affirmed. 

JUSTICE STEWART, with whom JUSTICE MARSHALL and JUS- 
TICE STEVENS join, concurring in the judgment. 

In Whalen v. United States, 445 U. S. 684, 688, the Court 
said that "the question whether punishments imposed by a 

3 Petitioners' contention that a single conspiracy which violates both 
846 and 963 constitutes the "same offense" for double jeopardy pur- 



ALBERNAZ v. UNITED STATES 345 

333 STEWART, J., concurring in judgment 

court after a defendant's conviction upon criminal charges 
are unconstitutionally multiple cannot be resolved without 
determining what punishments the Legislative Branch has 
authorized." 

But that is a far cry from what the Court says today: 
u [T]he question of what punishments are constitutionally 
permissible is not different from the question of what punish- 
ments the Legislative Branch intended to be imposed. Where 
Congress intended, as it did here, to impose multiple punish- 
ments, imposition of such sentences does not violate the Con- 
sitution." Ante, at 344. These statements are ^ supported by 
neither precedent nor reasoning and are unnecessary to reach 
the Court's conclusion. 

No matter how clearly it spoke, Congress could not consti- 
tutionally provide for cumulative punishments unless each 
statutory offense required proof of a fact that the other did 
not, under the criterion of Blockburger v. United States, 284 
U. S. 299. 

Since Congress has created two offenses here, and since 
each requires proof of a fact that the other does not, I con- 
cur in the judgment. 



poses is wrong. We noted in Brown v. Ohio, that the established 
test for determining whether two offenses are the "same offense" is the 
rule set forth in Blockburger the same rule on which we relied in deter- 
mining congressional intent. As has been previously discussed, conspiracy 
to import marihuana in violation of 963 and conspiracy to distribute 
marihuana in violation of 846 clearly meet the Blockburger standard. 
It is well settled that a single transaction can give rise to distinct offenses 
under separate statutes without violating the Double Jeopardy Clause. 
See, e. g., Harris v. United States, 359 U. 8. 19 (1959) ; Gore v. United 
States, 357 U. S. 386 (1958). This is true even though the "single trans- 
action" is an agreement or conspiracy. American Tobacco Co. v. United 
States, 328 U. S. 781 (1946). 



346 OCTOBER TERM, 1980 

Syllabus 460 U.S. 

DELTA AIR LINES, INC. v. AUGUST 

CBRTIORAia: TO THE UNITED STATES COURT OP APPEAI*S FOB THE 

SEVENTH CIRCUIT 

No. 7-814. Argued November 12, 1980 Decided March 9, 1981 

Held: Federal Rule of Civil Procedure 68 which provides that if a plain- 
tiff rejects a defendant's formal settlement offer "to allow judgment to 
be taken against him," and if "the judgment finally obtained by the 
offeree is not more favorable than the offer," the plaintiff "must pay the 
costs incurred after the making of the offer" does not apply to a case 
in which judgment is entered against the plaintiff-offeree and in favor 
of the defendant-offeror. Pp. 350-361. 

(a) This interpretation is dictated by Rule 68's plain language 
"judgment finally obtained by the offeree . . . not more favorable than 
the offer" which confines the Rule's effect to a case in which the plain- 
tiff has obtained a judgment for an amount less favorable than the 
defendant's settlement offer. Moreover, because the Rule contemplates 
that a "judgment taken" against a defendant is one favorable to the 
plaintiff, it follows that a judgment "obtained" by the plaintiff is also 
a favorable one. Pp. 350-352. 

(b) Such interpretation of Rule 68 is also consistent with the Rule's 
purpose to encourage the settlement of litigation, since the Rule pro- 
vides an inducement to settle those cases in which there is a strong 
probability that the plaintiff will obtain a judgment but the amount of 
recovery is uncertain. It could not have been reasonably intended on 
the one hand affirmatively to grant the district judge discretion to deny 
costs to the prevailing party under Rule 54 (d) which provides that 
costs shall be allowed to the prevailing party unless the trial court other- 
wise directs and then on the other hand to give defendants and only 
defendants the power to take away that discretion by performing a 
token act of making a nominal settlement offer. In both of the situa- 
tions in which Rule 68 does not apply judgments in the defendant's 
favor or in the plaintiff's favor for an amount greater than the settle- 
ment offer the trial judge retains his Rule 54 (d) discretion. Rule 
68's plain language makes it unnecessary to read a requirement into 
the Rule that only a reasonable settlement offer triggers the rule. A 
literal interpretation avoids the problem of sham offers, because such an 
offer will serve no purpose, and a defendant will be encouraged to make 
only realistic settlement offers. Pp. 352-356. 

(c) The above interpretation of Rule 68 is further compelled by its 



DELTA AIR LINES, INC. v. AUGUST 347 

346 Opinion of the Court 

history the state rules upon which the Rule was modeled, the cases 
interpreting those rules, and the view of the commentators, including 
the members of the Advisory Committee. Pp. 356-361. 
600 F. 2d 699, affirmed. 

STEVENS, J., delivered the opinion of the Court, in which BKENNAN, 
WHITE, MARSHALL, and BLACKMTHST, JJT,, joined. POWELL, J., filed an 
opinion concurring in the result, post, p. 362. REHNQUIST, J., filed a dis- 
senting opinion, in which BURGER, C. J., and STEWART, J,, joined, post, 
p. 366. 

E. Allan Kovar argued the cause for petitioner. With 
him on the briefs were Max G. Brittain, Jr., William 
H. Du Ross III, and Robert S. Harkey. 

Susan Margaret Vance argued the cause for respondent. 
With her on the brief was Carole K. Bellows. 

Elinor Hadley Stillman argued for the United States et al. 
as amid curiae urging affirmance. With her on the brief 
were Solicitor General McCree, Deputy Solicitor General 
Wallace, Leroy D. Clark, Joseph T. Eddins, and Lutz Alex- 
ander Prager* 

JUSTICE STEVENS delivered the opinion of the Court. 

Pursuant to Rule 68 of the Federal Rules of Civil Proce- 
dure, if a plaintiff rejects a defendant's formal settlement 
offer, and if "the judgment finally obtained by the offeree is 

^Robert E. Williams, Douglas S. McDowell, and Daniel R. Levinson 
filed a brief for the Equal Employment Advisory Council as amicus curiae 
urging reversal. 

Briefs of amici curiae urging affirmance were filed by E. Richard Larson 
and Bruce J. Ennis for the American Civil Liberties Union; by John 
B. Jones, Jr., Norman Redlich, Wtttiam L. Robinson, Norman J. Chachkin, 
and Beatrice Rosenberg for the Lawyers' Committee for Civil Rights 
Tinder Law; and by Martha A. Mitts and SybUle <7. Fritzsche for the 
Lawyers' Committee for Civil Rights Under Law of Chicago. 

Briefs of amici curiae were filed by Aldus 8. Mitchett and Sophia H. Hall 
for the National Association for the Advancement of Colored People; and 
by Mary Ellen Hudgins for the Northwest Women's Law Center et al. 



348 OCTOBER TERM, 1980 

Opinion of the Court 450 U.S. 

not more favorable than the offer/' the plaintiff "must pay 
the costs incurred after the making of the offer." * The nar- 
row question presented by this case is whether the words 
"judgment finally obtained by the offeree" as used in that 
Rule should be construed to encompass a judgment against the 
offeree as well as a judgment in favor of the offeree. 

Respondent Rosemary August (plaintiff) filed a complaint 
against petitioner Delta Air Lines, Inc. (defendant), alleging 
that she had been discharged from her position as a flight 
attendant solely because of her race in violation of Title VII 
of the Civil Rights Act of 1964, 42 U. S. C. 2000e et seq. 
She sought reinstatement, approximately $20,000 in backpay, 
attorney's fees, and costs. A few months after the complaint 
was filed, defendant made a formal offer of judgment to 
plaintiff in the amount of $450. 2 The offer was refused, the 

1 Rule 68, as amended in 1966, provides: 

"At any time more than 10 days before the trial begins, a party de- 
fending against a claim may serve upon the adverse party an offer to allow 
judgment to be taken against him for the money or property or to the 
effect specified in his offer, with costs then accrued. If within 10 days 
after the service of the offer the adverse party serves written notice that 
the offer is accepted, either party may then file the offer and notice of 
acceptance together with proof of service thereof and thereupon the clerk 
shall enter judgment. An offer not accepted shall be deemed withdrawn 
and evidence thereof is not admissible except in a proceeding to determine 
costs. If the judgment finally obtained by the offeree is not more favor- 
able than the offer, the offeree must pay the costs incurred after the 
making of the offer. The fact that an offer is made but not accepted does 
not preclude a subsequent offer. When the liability of one party to an- 
other has been determined by verdict or order or judgment, but the 
amount or extent of the liability remains to be determined by further pro- 
ceedings, the party adjudged liable may make an offer of judgment, which 
shall have the same effect as an offer made before trial if it is served within 
a reasonable time not less than 10 days prior to the commencement of 
hearings to determine the amount or extent of liability." 

2 The formal offer of judgment submitted by the defendant to the attor- 
ney for the plaintiff read as follows: 

"Pursuant to Rule 68 of the Federal Rules of Civil Procedure, defendant 
hereby offers to allow judgment to be taken against it in this action, in the 



DELTA AIR LINES, INC. v. AUGUST 349 

346 Opinion of the Court 

case was tried, and plaintiff lost. The District Court entered 
judgment in favor of defendant and directed that each party 
bear its own costs. Defendant then moved for modification 
of the judgment, contending that under Rule 68 the plaintiff 
should be required to pay the costs incurred by defendant 
after the offer of judgment had been refused. The District 
Court denied the motion on the ground that the $450 offer 
had not been made in a good-faith attempt to settle the case 
and therefore did not trigger the cost-shifting provisions of 
Rule 68. s The Court of Appeals affirmed on the same ground, 
600 F. 2d 699 (CA7 1979), holding that Rule 68 applied only 
if the defendant's settlement offer was sufficient "to justify 
serious consideration by the plaintiff/' 4 

amount of $450 which shall include attorney's fees, together with costs 
accrued to date. This offer of judgment is made for the purposes specified 
in Rule 68, and is not to be construed either as an admission that the 
defendant is liable in this action, or that the plaintiff has suffered any 
damage." App. 34. 

3 Senior District Judge Hoffman stated: 

"While there is little authority on the point, this Court is satisfied that 
in order to be effective, a Rule 68 offer must be made in a good faith 
attempt to settle the parties' litigation and, thus, must be at least 
arguably reasonable. 

. * 

"If the purpose of the rule is to encourage settlement, it is impossible for 
this Court to concede that this purpose can be furthered or aided by an 
offer that is not at least arguably reasonable. 

. 

"Finally, while the Court did ultimately find itself constrained to enter 
its judgment for the defendant, the Court certainly did not find the plain- 
tiff's claim to be wholly specious. In the opinion of this Court and in 
the particular facts and circumstances of this case, an offer of only the 
sum of $450 could only have been effective were the plaintiff's claim totally 
lacking in merit or were there present additional factors which would 
mitigate in favor of the defendant." Id., at 11-12. 

4 "Against that general background, the Rule 68 offer of judgment of 
less than $500 before trial is not of such significance in the context of this 
case to justify serious consideration by the plaintiff. At oral argument the 
defendant urged that even an offer of $10 would have met the require- 



350 OCTOBER TERM, 1980 

Opinion of the Court 450 TL S. 

In finding a reasonableness requirement in the Rule, the 
Court of Appeals did not confront the threshold question 
whether Rule 68 has any application to a case in which judg- 
ment is entered against the plaintiff-offeree and in favor of 
the defendant-offeror. Our resolution of the case, however, 
turns on that threshold question. The answer is dictated by 
the plain language, the purpose, and the history of Rule 68. 



Rule 68 prescribes certain consequences for formal settle- 
ment offers made by "a party defending against a claim." 5 
The Rule has no application to offers made by the plaintiff. 
The Rule applies to settlement offers made by the defendant 
in two situations: (a) before trial, and (b) in a bifurcated pro- 
ceeding, after the liability of the defendant has been deter- 
mined "by verdict or order or judgment." In either situation, 
if the plaintiff accepts the defendant's offer, "either party 
may then file the offer . . . and thereupon the clerk shall 
enter judgment." If, however, the offer is not accepted, it is 
deemed withdrawn "and evidence thereof is not admissible 
except in a proceeding to determine costs." The plaintiff's 
rejection of the defendant's offer becomes significant in such 
a proceeding to determine costs. 



ments of Rule 68 and served the purpose of shifting cost liability. If that 
were so, a minimal Ride 68 offer made in bad faith could become a 
routine practice by defendants seeking cheap insurance against costs. The 
useful vitality of Rule 68 would be damaged. Unrealistic use of the rule 
would not encourage settlements, avoid protracted litigation or relieve 
courts of vexatious litigation." 600 F. 2d, at 701. (Footnote omitted.) 

5 In multiclaim litigation, such a party may, of course, be defending 
against a counterclaim or a cross-claim, but the effect of the Rule can 
most readily be explained by reference to cases involving a single claim 
by one plaintiff against one defendant. For that reason, as well as the 
fact that this case involves such a claim, we simply refer to the parties as 
"plaintiff" and "defendant." 

6 No issue is presented in this case concerning the amount or the items 
of costs that defendant seeks to recover. 



DELTA AIR LINES, INC. v. AUGUST 351 

346 Opinion of the Court 

Under Rule 54 (d) of the Federal Rules of Civil Procedure, 
the party prevailing after judgment recovers costs unless the 
trial court otherwise directs. 7 Rule 68 could conceivably alter 
the Rule 54 (d) presumption in favor of the prevailing party 
after three different kinds of judgments are entered: (1) a 
judgment in favor of the defendant; (2) a judgment in favor 
of the plaintiff but for an amount less than the defendant's 
settlement offer; or (3) a judgment for the plaintiff for an 
amount greater than the settlement offer. The question pre- 
sented by this case is which of these three situations is de- 
scribed by the words "judgment finally obtained by the of- 
feree . . . not more favorable than the offer/' 

Obviously those words do not encompass the third sit- 
uation a judgment in favor of the offeree that is more 
favorable than the offer. Those words just as clearly do 
encompass the second, for there can be no doubt that a judg- 
ment in favor of the plaintiff has been "obtained by the 
offeree." But inasmuch as the words "judgment . . . ob- 
tained by the offeree" rather than words like "any judg- 
ment" would not normally be read by a lawyer to describe 
a judgment in favor of the other party, the plain language of 
Rule 68 confines its effect to the second type of case one in 
which the plaintiff has obtained a judgment for an amount 
less favorable than the defendant's settlement offer. 

This reading of the plain language of the Rule is supported 
by other language contained in the Rule. The Rule applies 
when the defendant offers to have "judgment . - . taken 
against him." Because the Rule obviously contemplates that 
a "judgment taken" against a defendant is one favorable to 
the plaintiff; it follows that a judgment "obtained" by the 
plaintiff is also a favorable one. 

7 Rule 54 (d) provides, in relevant part: 

"(d) Costs 

"Except when express provision therefor is made either in a statute of 
the United States or in these rules, costs shall be allowed as of course to 
the prevailing party unless the court otherwise directs . . . ." 



352 OCTOBER TERM, 1980 

Opinion of the Court 450 U.S. 

In sum, if we limit our analysis to the text of the Rule it- 
self, it is clear that it applies only to offers made by the de- 
fendant and only to judgments obtained by the plaintiff. It 
therefore is simply inapplicable to this case because it was 
the defendant that obtained the judgment. 

II 

Our interpretation of the Rule is consistent with its pur- 
pose. The purpose of Rule 68 is to encourage the settlement 
of litigation. 8 In all litigation, the adverse consequences of 
potential defeat provide both parties with an incentive to 
settle in advance of trial. Rule 68 provides an additional 
inducement to settle in those cases in which there is a strong 
probability that the plaintiff will obtain a judgment but the 
amount of recovery is uncertain. Because prevailing plain- 
tiffs presumptively will obtain costs under Rule 64 (d), Rule 
68 imposes a special burden on the plaintiff to whom a formal 
settlement offer is made. If a plaintiff rejects a Rule 68 set- 
tlement offer, he will lose some of the benefits of victory if 
his recovery is less than the offer. 9 Because costs are usually 
assessed against the losing party, liability for costs is a nor- 
mal incident of defeat. Therefore, a nonsettling plaintiff 
does not run the risk of suffering additional burdens that 
do not ordinarily attend a defeat, and Rule 68 would provide 
little, if any, additional incentive if it were applied when the 
plaintiff loses. 

8 Advisory Committee's Notes on Fed. Rule Civ. Proc. 68, 28 U. S, C. 
App., p. 499; 12 C. Wright & A. Miller, Federal Practice and Procedure 
3001, p. 56 (1973) ; 7 J. Moore & J. Lucas, Moore's Federal Practice 
f 68.02, p. 68-4 (1979). 

9 This incentive is most clearly demonstrated by the situation in which 
the defendant's liability has been established "by verdict or offer of judg- 
ment" or perhaps by an admission and the only substantial issue to be 
tried concerns the amount of the judgment. In that context, the oppor- 
tunity to avoid the otherwise almost certain liability for costs should 
motivate realistic settlement offers by the defendant, and the risk of losing 
the right to recover costs provides the plaintiff with an additional reason 
for preferring settlement to further litigation. 



DELTA AIR LINES, INC. v. AUGUST 353 

346 Opinion of the Court 

Defendant argues that Rule 68 does provide such an incen- 
tive, because it operates to deprive the district judge of the 
discretion vested in him by Rule 54 (d). According to this 
reasoning, Rule 68 is mandatory, and a district judge must 
assess costs against a plaintiff who rejects a settlement offer 
and then either fails to obtain a judgment or recovers less 
than the offer. Therefore, nonsettling plaintiffs could not 
reject settlement offers in the expectation that the judge 
might exercise his discretion to deny the defendant costs if 
the defendant wins. 10 

If we were to accept this reasoning, it would require us to 
disregard the specific intent expressed in Rule 54 (d) and 
thereby to attribute a schizophrenic intent to the drafters. If, 
as defendant argues, Rule 68 applies to defeated plaintiffs, 
any settlement offer, no matter how small, would apparently 
trigger the operation of the Rule. 11 Thus any defendant, 
by performing the meaningless act of making a nominal set- 
tlement offer, could eliminate the trial judge's discretion 
under Rule 54 (d) . We cannot reasonably conclude that the 
drafters of the Federal Rules intended on the one hand affirm- 
atively to grant the district judge discretion to deny costs to 
the prevailing party under Rule 54 (d) and then on the other 
hand to give defendants and only defendants the power 
to take away that discretion by performing a token act. 12 



10 Delta argues that this additional incentive provided by Rule 68 is 
taking on increased importance as more district judges, like the District 
Judge here, are exercising the discretion granted by Rule 54 (d) to deny 
costs to prevailing defendants. 

11 Defendant contended at oral argument that a settlement offer of one 
penny should trigger the cost-shifting provision of the Rule if the de- 
fendant prevails. Tr. of Oral Arg. 5. 

12 Defendant argues that our construction of the Rule is anomalous 
because under Rule 68, a defendant who prevails is in a less favorable 
position than if he had lost the case but for an amount less than 
the offer. Reply Brief for Petitioner 10. The argument is applicable, 
however, only in a narrowly limited category of cases. First, because 
the prevailing defendant normally recovers costs, the argument is relevant 



354 OCTOBER TERM, 1980 

Opinion of the Court 460 U.S. 

Moreover, if the Rule operated as defendant argues, we can- 
not conceive of a reason why the drafters would have given 
only defendants, and not plaintiffs, the power to divest the 
judge of his Rule 54 (d) discretion. See Simonds v. Guar- 
anty Bank & Trust Co., 480 F. Supp. 1257, 1261 (Mass. 1979). 
When Rule 68 is read literally, however, it is evenhanded 
in its operation. As we have already noted, it does not apply 
to judgments in favor of the defendant or to judgments in 
favor of the plaintiff for an amount greater than the settle- 
ment offer. In both of those extreme situations the trial 
judge retains his Rule 54 (d) discretion. In the former his 
discretion survives because the Rule applies only to judgments 
"obtained by the offeree"; in the latter, it survives because 
the Rule does not apply to a judgment "more favorable than 
the offer." 1S Thus unless we assume that the Federal Rules 
were intended to be biased in favor of defendants, we can 
conceive of no reason why defendants and not plaintiffs 



only in the relatively few cases in which special circumstances may per- 
suade the district judge to exercise his discretion to deny costs to the 
prevailing party. And second, even within that small category, the argu- 
ment is only valid if the settlement offer is for an amount less than the 
recoverable costs. For if the plaintiff obtains a judgment for an amount 
less than the offer but greater than the cost bill, the net liability of the 
defendant will be greater than the burden of paying his own costs after a 
victory on the merits. The fact that a defendant may obtain no benefit 
from a settlement offer for an amount less than his probable taxable costs 
is surely not a sufficient reason to disregard the plain language of the 
Rule, or to question its efficacy in motivating realistic settlement proposals 
in cases in which the defendant recognizes a significant risk that the plain- 
tiff will obtain a judgment. 

In sum, the effect of a literal interpretation of Rule 68 is to attach no 
practical consequences to a sham or token offer by the defendant. Since 
there is no reason to encourage such token offers, the Rule quite sensibly 
leaves the parties in the same position after such an offer as they would 
have been in if no such offer had been made. See n. 21, infra. 

13 Moreover, because Rule 68 has no application at all to offers made 
by the plaintiff, the plaintiff may not divest the district judge of his Rule 
54 (d) discretion by making a sham offer. 



DELTA AIR LINES, INC. v. AUGUST 365 

346 Opinion of the Court 

should be given an entirely risk-free method of denying trial 
judges the discretion that Rule 54 (d) confers regardless of 
the outcome of the litigation. 14 

The Court of Appeals, perceiving the anomaly of allowing 
defendants to control the discretion of district judges by mak- 
ing sham offers, resolved the problem by holding that only 
reasonable offers trigger the operation of Rule 68. But the 
plain language of the Rule makes it unnecessary to read a 
reasonableness requirement into the Rule. A literal interpre- 
tation totally avoids the problem of sham offers, because 
such an offer will serve no purpose, and a defendant will be 
encouraged to make only realistic settlement offers. 15 The 



14 Defendant also argues that it should be permitted to use Rule 68 to 
recover costs in this manner because district judges have recently been 
exercising their discretion to deny prevailing defendants costs in too many 
cases. Reply Brief for Petitioner 8; Tr. of Oral Arg. 14. Since Rule 
68 was promulgated prior to this alleged misapplication of Rule 54 (d), it 
surely was not intended to remedy a problem that had not yet surfaced. 

Of course, there really is no reason to assume that district judges are 
repeatedly abusing their Rule 54 (d) discretion. If we make the more 
probable assumption that they are denying costs to the prevailing party 
only when there would be an element of injustice in a cost award, the bur- 
den of defendant's argument is not only that a special privilege should be 
granted to defendants but also that its primary effect will be to thwart the 
administration of justice. 

15 See Note, Rule 68: A "New" Tool for Litigation, 1978 Duke L. J. 
889, 895: 

"An offer by a defendant of ten dollars at the beginning of a difficult and 
complex case, or of a case based on a novel legal theory, is not likely to 
produce an early settlement of the case, which is the purpose of the rule. 
Yet, if the rule is not limited to cases in which the plaintiff prevails, the 
ten dollar offer will have the effect of assuring that the defendant is 
awarded practically all of his costs if he prevails, even if there are good 
reasons why the defendant should not be awarded his costs. This is 
clearly not the result that the rulemakers envisioned. If interpreted to 
require that the plaintiff secure at least some relief, the rule would insure 
that token offers will not be made because nothing would be gained by 
them. In most cases, the defendant, as the prevailing party, will be en- 
titled to costs under rule 54 (d) . When the defendant is not so entitled, 



356 OCTOBER TERM, 1980 

Opinion of the Court 450 U.S. 

Federal Rules are to be construed to "secure the just, speedy, 
and inexpensive determination of every action/' Fed. Rule 
Civ. Proc. 1. If a plaintiff chooses to reject a reasonable 
offer, then it is fair that he not be allowed to shift the cost 
of continuing the litigation to the defendant in the event that 
his gamble produces an award that is less than or equal to 
the amount offered. But it is hardly fair or evenhanded to 
make the plaintiff 's rejection of an utterly frivolous settle- 
ment offer a watershed event that transforms a prevailing 
defendant's right to costs in the discretion of the trial judge 
into an absolute right to recover the costs incurred after the 
offer was made. 16 

Ill 

This interpretation of the language of the Rule and its clear 
purpose is further compelled by the history of Rule 68. Rule 
68 is an outgrowth of the equitable practice of denying costs 
to a plaintiff "when he sues vexatiously after refusing an 
offer of settlement." * 7 The 1938 Advisory Committee Notes 
to the original version of the Rule merely cited three state 
statutes as illustrations of the operation of the Rule. 18 These 
three statutes, from Minnesota, Montana, and New York, 



he ought not be able to employ rule 68 to override the discretion that 
the court would otherwise have, in order to compel the awarding of costs." 
lft Moreover, because the defendant's settlement offer is admissible at a 
proceeding to determine costs, a defendant could use a reasonable settle- 
ment offer as a means of influencing the judge's discretion to award costs 
under Rule 54 (d). 

17 12 C. Wright & A. MiUer, Federal Practice and Procedure 3001, p. 
56 (1973). 

18 One of the members of the Advisory Committee, Robert Q. Dodge, 
indicated at a symposium on the new Rules that the Rule was based on 
"statutes which are widely prevalent in the states . . . ." American Bar 
Association, Rules of Civil Procedure for the District Court of the United 
States with Notes as prepared under the direction of the Advisory Com- 
mittee and Proceedings of the Institute on Federal Rules, Cleveland, Ohio 
337 (1938) (hereinafter Institute on Federal Rules). 



DELTA AIR LINES, INC. v. AUGUST 357 

346 Opinion of the Court 

mandated the imposition of costs on a plaintiff who rejected 
settlement offers and failed to obtain a judgment more favor- 
able than the offer. 19 All three States had other provisions, 
similar to Rule 54 (d), providing for the recovery of costs by 

19 2 Minn. Stat. 9323 (Mason 1927) provided: 

"At least ten days before the term at which any civil action shall stand 
for trial the defendant may serve on the adverse party an offer to allow 
judgment to be taken against him for the sum, or property, or to the 
effect therein specified, with costs then accrued. If within ten days there- 
after such party shall give notice that the offer is accepted, he may file 
the same, with proof of such notice, and thereupon the clerk shall enter 
judgment accordingly. Otherwise the offer shall be deemed withdrawn, 
and evidence thereof shall not be given; and if a more favorable judg- 
ment be not recovered no costs shall be allowed, but those of the defendant 
shall be taxed in his favor " 

4 Mont Rev. Codes Ann. 9770 (1935) provided: 

"The defendant may, at any time before the trial or judgment, serve upon 
the plaintiff an offer to allow judgment to be taken against him for the 
sum or property, or to the effect therein specified If the plaintiff accept 
the offer, and give notice thereof within five days, he may file the offer, 
with proof of notice of acceptance, and the clerk must thereupon enter 
judgment accordingly. If the notice of acceptance be not given, the offer 
is to be deemed withdrawn, and cannot be given in evidence upon the 
trial; and if the plaintiff fail to obtain a more favorable judgment, he 
cannot recover costs, but he must pay the defendant's costs from the time 
of the offer." 

N. Y. Civ. Prac. Law 177 (Cahill 1937) provided: 
"Before the trial, the defendant may serve upon the plaintiff's attorney 
a written offer to allow judgment to be taken against him for a sum, or 
property, or to the effect, therein specified, with costs. If there be two or 
more defendants, and the action can be severed, a like offer may be made 
by one or more defendants against whom a separate judgment may be 
taken. If the plaintiff, within ten days thereafter, serve upon the defend- 
ant's attorney a written notice that he accepts the offer, he may file the 
summons, complaint, and offer, with proof of acceptance, and thereupon 
the clerk must enter judgment accordingly. If notice of acceptance be not 
thus given, the offer cannot be given in evidence upon the trial; but, if 
the plaintiff fail to obtain a more favorable judgment, he cannot recover 
costs from the time of the offer, but must pay costs from that time." 



358 OCTOBER TERM, 1980 

Opinion of the Court 450 U. S. 

a prevailing party. 20 Therefore, the only purpose served by 
these state off er-of- judgment rules was to penalize prevailing 
plaintiffs who had rejected reasonable settlement offers with- 
out good cause. 21 As defendant notes, other States have or 
had similar rules. 22 But with one exception all of the cases 
cited by plaintiff, defendant, and the EEOC as amicus in- 
volving state cost-shifting rules were cases in which the plain- 
tiff prevailed. 23 



2 See 2 Minn. Stat. 9471-9473 (Mason 1927) ; 4 Mont. Rev. Codes 
Ann 9787, 9788 (1935); N. Y. Civ. Prac. Law 1470-1475 (CahUl 
1937). 

21 In each of these States, the general statute providing for recovery of 
costs by prevailing defendants was, unlike Rule 54 (d), mandatory. See, 
e. g., 4 Mont. Rev. Code Ann 9787-9788 (1935) ; 2 Minn. Stat. 9471 
(Mason 1927); N. Y. Civ. Prac. Law 1470-1475 (Cahill 1937). Inas- 
much as those statutes did not give trial judges discretion to deny costs to 
prevailing defendants, the state antecedents of Rule 68 did not perform 
any cost-shifting function in cases in which the defendant prevailed. In 
those States as is true under Rule 68 a sham settlement offer had no 
practical consequences; it left the parties in the same situation as if no 
offer had been made. See n. 12, supra. Therefore, the state offer-of- 
judgment statutes provide support for the view that Rule 68 applies only 
to prevailing plaintiffs. 

22 See, e. g., Gal. Civ. Proc. Code Ann. 998 (West 1980) ; Yeager v. 
Campion, 70 Colo. 183, 197 P. 898 (1921) ; Wordin v. Bemis, 33 Conn. 216 
(1866) ; Prather v. Pritchard, 26 Ind. 65 (1866) ; West v. Springfield Fire 
& Marine Ins Co., 105 Kan. 414, 185 P. 12 (1919) ; Wachsmuth v. Orient 
Ins. Co., 49 Neb. 590, 68 N. W. 935 (1896) ; Herring-Hall-Marvin Safe Co. 
v. Bdliet, 44 Nev. 94, 190 P. 76 (1920) ; Hammond v. Northern Pacific 
R. Co., 23 Ore. 157, 31 P. 299 (1892); Sioux FaJls Adjustment Co. v. 
Penn. Soo Oil Co., 53 S. D. 77, 220 N. W. 146 (1928) ; Newton v. Attis, 16 
Wis. 197 (1862). 

23 See cases cited in n. 22, supra; see also Miklautsch v. Dondrdck, 452 
P. 2d 438 (Alaska 1969) ; Brown v. Nolan, 98 Cal. App. 3d 445, 159 Cal. 
Rptr. 469 (1979); Schnute Holtman Co. v. Sweeney, 136 Ky. 773, 125 
S. W. 180 (1910) ; Watkins v. W. E. Neiler Co., 135 Minn. 343, 160 N. W. 
864 (1917) ; Petrosky v. Flanagan, 38 Minn. 26, 35 N. W. 665 (1887) ; 
Woolsey v. O'Brien, 23 Minn. 71, 72 (1876) ; Morris-Turner Live Stock 
Co. v. Director General of Railroads, 266 F. 600 (Mont. 1920) ; MarguLis 



DELTA AIR LINES, INC. v. AUGUST 359 

346 Opinion of the Court 

The commentators, including the members of the Advisory 
Committee, have agreed with our interpretation of the Rule. 24 
At a symposium held shortly after the Rules were issued in 



v. Solomon & Berck Co., 223 App. Div, 634, 229 N. Y. 8. 157 (1928) ; 
Smith v. New York, 0. & W. R. Co, 119 Misc. 506, 196 N. Y. S 521 
(1922) ; McNally v. Rowan, 101 App. Div. 342, 92 N. Y. S. 250, aff'd, 181 
N. Y. 556, 74 N. E. 1120 (1905) ; Ranney v. Russell, 10 N. Y. Super. 689, 
690 (1854) ; Benda v. Fana, 10 Ohio St. 2d 259, 227 N. E. 2d 197 (1967) ; 
but see Terry v Burger, 6 Ohio App. 2d 53, 216 N. E. 383 (1966). 

24 Some commentators assume that the Rule, even when applicable, oper- 
ates to deny costs to a prevailing plaintiff and not to impose liability for 
defendants' costs on that plaintiff. Wright and Miller's treatise indicates: 

"Rule 68 is intended to encourage settlements and avoid protracted 
litigation. It permits a party defending against a claim to make an offer 
of judgment. If the offer is not accepted, and the ultimate judgment is 
not more favorable than what was offered, the party who made the offer 
is not liable for costs accruing after the date of the offer. 

"This device was entirely new to the federal courts when the Federal 
Rules were adopted in 1938. But it was familiar in state practice. And 
the general principle, that a party may be denied costs when he sues vexa- 
tiously after refusing an offer of settlement, and recovers no more than 
he had been previously offered, has been held to be within the powers of 
an equity court regardless of the existence of a rule such as this one. 

"Although the privilege of an offer of settlement is extended only to 
the party defending against a claim, it furnishes a just procedure to all 
parties concerned. It is fair to the claimant because it does the defending 
party no good to make an offer of judgment that is not what the claimant 
might reasonably be expected to recover; he will not free himself of the 
costs if the judgment recovered is more than the offer. It is certainly 
fair to the defending party because it allows him to free himself of the 
court costs by offering to make a settlement. It is of great benefit to the 
court because it encourages settlements and discourages vexatious suits 
and thus diminishes the burden of litigation/ 1 (Footnotes omitted.) 
(Emphasis supplied.) 12 C. Wright & A. Miller, Federal Practice and 
Procedure 3001, p. 56 (1973). 

Moore uses similar language in his treatise, stating that an offer of judg- 
ment will "operate to save [the defendant] the costs from the time of that 
offer if the plaintiff ultimately obtains a judgment less than the sum of- 
fered." 7 J. Moore & J. Lucas, Moore's Federal Practice f 68.06, p. 68-13 
(1979) (emphasis supplied). See also Dobie, The Federal Rules of Civil 



360 OCTOBER TERM, 1980 

Opinion of the Court 450 U.S. 

1938, one of the members of the Advisory Committee pre- 
sented the Rule as "a means for stopping the running of 
costs where the defendant admits that part of the claim is 
good but proposes to contest the balance." 25 The Advisory 
Committee Notes to the 1946 Amendment to the Rule indi- 
cate that the Rule was designed to "save" a defendant from 
having to reimburse the plaintiff for costs incurred after the 
offer was made and not to make mandatory the court's dis- 
cretionary power to tax costs against the plaintiff in the event 
the defendant prevails. 26 The fact that the defense bar did 
not develop a practice of seeking costs under Rule 68 by 
making nominal settlement offers is persuasive evidence that 
trial lawyers have interpreted the Rule in accordance with its 
plain language. 27 Thus the state rules upon which Rule 68 



Procedure, 25 Va. L. Rev. 261, 304, n. 195 (1939) ("[!]* the offer is not 
accepted, it, of course, relieves the offering defendant of the burden of 
future costs, thereby constituting an inducement to the making of such 
offers")- 

25 Mr. Dodge stated: 

"This rule is based upon statutes which are widely prevalent in the states, 
and it affords a means for stopping the running of costs where the 
defendant admits that part of the claim is good but proposes to contest 
the balance. He may then make an offer of judgment of the amount 
which he conceives is due, and unless the plaintiff recovers more than that 
the plaintiff gets no costs accruing after that offer of judgment." Insti- 
tute on Federal Rules 337 (emphasis supplied). 

26 The Advisory Committee's Notes state: 

"It is implicit, however, that as long as the case continues whether there 
be a first, second or third trial and the defendant makes no further offer, 
his first and only offer will operate to save him the costs from the time of 
that offer if the plaintiff ultimately obtains a judgment less than the sum 
offered. In the case of successive offers not accepted, the offerer is saved 
the costs incurred after the making of the offer which was equal to or 
greater than the judgment ultimately obtained." 28 II. S. C. App., p. 499. 

27 It was not until 1974 that any federal court even suggested that 
Rule 68 could be interpreted to apply to a case in which the defendant 



DELTA AIE LINES, INC. v. AUGUST 361 

346 Opinion of the Court 

was modeled, the cases interpreting those rules, and the com- 
mentators' view of the Rule are all consistent with, and in 
fact compel, our reading of its plain language. 



prevails. See Mr. Hanger, Inc. v. Cut Rate Plastic Hangers, I no , 63 
F R. D. 607 (EDNY 1974). 

Apart from the case at bar and Mr. Hanger, Inc., there are only two 
other reported cases in which a defendant attempted to recover his own 
costs under Rule 68 after obtaining a judgment in his favor. In Dual v. 
Cleland, 79 F. R D. 696 (DC 1978), the court followed Mr. Hanger and 
reluctantly granted defendant an award of costs under Rule 68, after stat- 
ing that it would not have allowed costs to defendant as the prevailing 
party under Rule 54 (d) . In Gay v. Waiters 9 and Dairy Lunchmen's 
Union, Local No. 80, 86 F. R. D. 500, 503-504 (ND Cal. 1980), the court 
assumed that Rule 68 applied to prevailing defendants but refused to ap- 
ply the Rule to impose costs on the named plaintiffs in a Title VII class 
action. The court noted that if Rule 68 applied in class actions, the dis- 
proportionate risk imposed on the class representatives would discourage 
the filing of Title VH suits. 

All the other reported cases involving Rule 68 were either cases in 
which the plaintiff had prevailed or cases in which the court implicitly as- 
sumed that the Rule was limited to such a situation. See, e. g., Mason v. 
Belieu, 177 U. S. App. D. C. 68, 75, 543 F. 2d 215, 222 (plaintiffs not 
awarded costs because they failed to file a bill of costs and defendant thus 
did not know which costs to object to as being incurred after the offer 
was made), cert, denied, 429 U. S. 852 (1976) ; Home Ins. Co. v. Kirkevold, 
160 F. 2d 938, 941 (CA9 1947) (plaintiff still entitled to recover costs 
where defendant did not prove that its offer of judgment was served 
within 10 days of trial) ; Truth Seeker Co. v. Durning, 147 F. 2d 54, 56 
(CA2 1945) ("[Defendant could have stopped the running of further 
costs by an offer of judgment under F. R. C. P. 68") ; Cover v. Chicago 
Eye Shield Co., 136 F. 2d 374 (CA7) (defendant not liable for fees of 
master and court reporter where plaintiff recovered less than offer), cert, 
denied, 320 U. S, 749 (1943) ; Staffend v. Lake Central Airlines, Inc., 47 
F. R. D. 218, 220 (ND Ohio 1969) (a defendant may "escape the imposi- 
tion of further costs where the plaintiff does not eventually secure a judg- 
ment exceeding the offer") ; Tansey v. Transcontinental & Western Air, 
Inc., 97 F. Supp. 458, 459 (DC 1949) (an offer that was not for a sum 
certain will not prevent the court from considering plaintiff's costs there- 
after incurred) ; Maguire v. Federal Crop Ins. Corp., 9 F. R. D. 240, 242 
(WD La. 1949) (defendant cannot "escape" paying the plaintiff's costs 



362 OCTOBER TEEM, 1980 

POWELL, J., concurring in result 450 U S. 

Although defendant's petition for certiorari presented the 
question of the District Judge's abuse of discretion in denying 
defendants costs under Rule 54 (d)> that question was not 
raised in the Court of Appeals and is not properly before us. 
We therefore affirm the judgment of the Court of Appeals. 

It is so ordered. 

JTJSTICE POWELL, concurring in the result. 

I agree with most of the views expressed in the dissenting 
opinion of JUSTICE REHISTQUIST, and do not agree with the 
Court's reading of Rule 68. It is anomalous indeed that, 
under the Court's view, a defendant may obtain costs under 
Rule 68 against a plaintiff who prevails in part but not against 
a plaintiff who loses entirely. 

I nevertheless concur in the result reached by the Court 
because I do not think that the terms of the offer made in 
this case constituted a proper offer of judgment within the 
scope of Rule 68. 

I 

Rule 68 provides, in pertinent part: 

"At any time more than 10 days before the trial begins, 
a party defending against a claim may serve upon the ad- 
verse party an offer to allow judgment to be taken against 
him for the money or property or to the effect specified 
in his offer, with costs then accrued" (emphasis added). 

because offer was not properly formalized), aff'd in part and rev'd in 
part, 181 F. 2d 320 (CAS 1950) ; FDIC v. Fruit Growers Service Co., 
2 F. R. D. 131, 133 (ED Wash. 1941) (after taxing certain disputed 
costs against defendant, court noted that the costs could have been 
avoided by taking advantage of Rule 68); Nabors v. Texas Co., 32 F. 
Supp. 91, 92 (WD La. 1940) (a defendant may "save himself in the mat- 
ter of costs if the recovery does not exceed what was tendered" if he 
proves that he made an offer of judgment). See also Scheriff v. Beck, 
452 F. Supp. 1254 (Colo. 1978) ; Waters v. Heublein, Inc., 485 F. Supp. 
110 (ND Col. 1979). 



DELTA AIR LINES, INC. v. AUGUST 363 

346 POWEI*L, J.> concurring in result 

In Title VII cases, the scope of "costs" is defined in the 
statute itself. Except in unusual circumstances, Title VII 
requires that a prevailing plaintiff receive "a reasonable at- 
torney's fee as part of the costs." 42 U. S. C. 2000e-5 (k) ; 
see Christiansburg Garment Co. v. EEOC, 434 U. S. 412, 416- 
417 (1978); Newman v. Piggie Park Enterprises, Inc., 390 
TL S. 400, 401-402 (1968). We held last Term in Maker v. 
Gagne, 448 U. S. 122, 129 (1980), that a claim to an attorney's 
fee is not weakened if the plaintiff prevails by "settlement 
rather than through litigation." 

A Rule 68 offer of judgment is a proposal of settlement 
that, by definition, stipulates that the plaintiff shall be treated 
as the prevailing party. It follows, therefore, that the "costs" 
component of a Rule 68 offer of judgment in a Title VII case 
must include reasonable attorney's fees accrued to the date 
of the offer. Scheriff v. Beck, 452 F. Supp. 1254, 1260 (Colo. 
1978) (offer of $2,200 together with costs, not including attor- 
ney's fees, was "fatally defective because it excludes attorney's 
fees then accrued"). 

The purposes of Title VII and Rule 68 each would be 
served by this plain-language construction of the relationship 
between the statute and the Rule. To be sure, Title VIF.S fee 
provision was designed to enable plaintiffs to vindicate their 
rights through litigation. Piggie Park, supra, at 401-402. 
On the other hand, parties to litigation and the public as a 
whole have an interest often an overriding one in settle- 
ment rather than exhaustion of protracted court proceedings. 
Rule 68 makes available to defendants a mechanism to en- 
courage plaintiffs to settle burdensome lawsuits. The Rule 
particularly facilitates the early resolution of marginal suits 
in which the defendant perceives the claim to be without 
merit, and the plaintiff recognizes its speculative nature. 1 



1 Unfortunately, the cost of litigation in this country furthered by dis- 
covery procedures susceptible to gross abuse has reached the point where 
many persons and entities simply cannot afford to litigate even the most 



364 OCTOBER TERM, 1980 

POWELL, J., concurring in result 450 U S. 

An offer to allow judgment that does not cover accrued costs 
and attorney's fees is unlikely to lead to settlement. Many 
plaintiffs simply could not afford to accept such an offer. It 
may be, also, that the plaintiff's lawyer instituted the suit with 
no hope of compensation beyond recovery of a fee from the de- 
fendant. Such a lawyer might have a conflict of interest that 
would inhibit encouraging his client to accept an otherwise 
fair offer. It therefore seems clear that the relevant in- 
terests of both parties and the public will be served by 
construing Title VII and Rule 68 in accordance with their 
plain language. 2 

II 

Delta's offer in this case did not comply with the terms of 
Rule 68. 

When a plaintiff prevails in a litigated Title VII suit, the 
court awards a reasonable attorney's fee. The primary factors 
relevant to setting the fee usually are the time expended and 

meritorious claim or defense. See Amendments to the Federal Rules of 
Civil Procedure, 446 U. S. 995, 999-1001 (1980) (POWELL, J., with whom 
STEWART and REHNQUIST, JJ., joined, dissenting); ACF Industries, Inc. 
v. EEOC, 439 U. S. 1081, 1086-1088 (1979) (POWELL, J., dissenting from 
denial of certiorari) ; Janofsky, A. B. A. Attacks Delay and the High Cost 
of Litigation, 65 A. B. A. J. 1323, 1323-1324 (1979). Cf. Herbert v. 
Lando, 441 U. S. 153, 177 (1979). 

2 In Roadway Express, Inc. v. Piper, 447 IT. S. 752 (1980), we held that 
the term "costs," as it is used in 28 U. S. C. 1927, does not incorporate 
by reference the definition of costs used in Title VII. Nothing in that 
case is inconsistent with my reasoning here. In Roadway Express, a party 
sought costs, including an attorney's fee, under 1927 from opposing coun- 
sel who had unreasonably and vexatiously delayed an employment discrim- 
ination lawsuit. We concluded that the attorney's fee could not be re- 
covered under 1927, because Congress intended that section to include 
only those costs specified in a corresponding section, 28 TJ. S. C. 1920. 
In this case, by contrast, the entitlement to "costs," including an attorney's 
fee, arises under Rule 68 of the Federal Rules of Civil Procedure. In 
approving the Federal Rules, Congress appears to have incorporated the 
definition of costs found in the substantive statute at issue in the litigation. 
Cf . Fed. Rule Civ. Proc. 54 (d) . 



DELTA AIR LINES, INC. v. AUGUST 365 

346 POWELL, J., concurring in result 

a reasonable hourly rate for that time. 3 Thus, a court is not 
bound by the prevailing attorney's proposed hourly rate or by 
the bill submitted. The fee itself must be reasonable. 

The same practice should be followed in Title VII cases in 
which the prevailing party is established by a Rule 68 offer 
of judgment. Cf. Maker v. Gagne, supra. In such a case, 
the offer of judgment consists of two components: (i) the 
substantive relief proposed, which may be a sum of money or 
specific relief such as reinstatement or promotion, and (ii) 
costs, including a reasonable attorney's fee. The offer should 
specify the first component with exactitude. But the amount 
of the fee is within the discretion of the court if the offer is 
accepted. 4 

Assessed by these standards, Delta's putative offer of judg- 
ment simply did not comply with the terms of Rule 68. In 
pertinent part, the offer provided : 

"Pursuant to Rule 68 of the Federal Rules of Civil 
Procedure, defendant hereby offers to allow judgment to 
be taken against it in this action, in the amount of $450, 
which shall include attorney's fees, together with costs 
accrued to date " (emphasis added). 



3 In Lindy Bros. Builders, Inc. v. American Radiator & Standard Sani- 
tary Corp., 540 F. 2d 102 (1976) (en bane), the Court of Appeals for the 
Third Circuit held that the primary determinant of a court-awarded fee 
the "lodestar" should be the amount of time reasonably expended on the 
matter multiplied by a reasonable hourly rate. The "lodestar" is subject 
to adjustment based on, inter alia, the quality of the work and the results 
obtained. Id, at 117-118; accord, Furtado v. Bishop, 635 F. 2d 915, 
922-924 (CA1 1980); Copeland v. Marshall, 205 U. S App. D. C 390, 
401-404, 641 F. 2d 880, 891-894 (1980) (en bane). Cf. Johnson v. Georgia 
Highway Express, Inc., 488 F. 2d 714 (CA5 1974) . 

4 It may be, of course, that the parties will settle the issue of costs and 
attorney's fees after the acceptance of the offer, without the need to in- 
volve the trial judge. Nothing in this opinion should be read to dis- 
courage that practice. But the terms of the offer of judgment must permit 
the prevailing plaintiff to request the trial judge to award a reasonable 
fee. 



366 OCTOBER TERM, 1980 

RBHNQTJIST, J., dissenting 450 U.S. 

Delta's offer would have complied with Rule 68 and the 
company now would be entitled to the costs it seeks 5 if the 
offer had specified some amount of substantive relief, plus 
costs and attorney's fees to be awarded by the trial court. 
But the offer did not so specify. 
Accordingly, I concur in the result. 



JUSTICE REHNQTJIST, with whom THE CHIEF JUSTICE 
JUSTICE STEWART join, dissenting. 

Of the several remarkable aspects of the Court's opinion 
in this case, not the least is that, save for the docket number 
and the name of the case, it bears virtually no resemblance to 
the judgment and opinion of the Court of Appeals for the 
Seventh Circuit which we granted certiorari to review. The 
question presented by the petition for certiorari, albeit in 
somewhat laborious form, is best captured in the first of the 
three questions: 

{ 'Whether the [C]ourt of [A]ppeals erred in nullifying 
the clear and unambiguous mandatory imposition of costs 
under Rule 68?" Pet. for Cert. 2. 

The Court states that "[t]he narrow question presented by 
this case is whether the words 'judgment obtained by the 
offeree' as used in that Rule should be construed to encom- 
pass a judgment against the offeree as well as a judgment in 



5 Contrary to the suggestion in JUSTICE REHNQTJIST'S dissenting opinion, 
post, at 378-379, nothing herein requires prevailing defendants to receive 
attorney's fees as part of their costs under Rule 68 when a plaintiff rejects 
an offer of judgment and then ultimately loses on the merits. As I have 
stated, it is the province of the trial judge to determine the entitlement 
to, and amount of, an attorney's fee. See n. 3, supra, and accompanying 
text. Prevailing plaintiffs are entitled to attorney's fees except in un- 
usual circumstances. Newman v. Piggie Park Enterprises, Inc., 390 TL S. 
400, 401-402 (1968). A prevailing defendant, on the other hand, is en- 
titled to attorney's fees as part of the costs only when the lawsuit is 
"frivolous, unreasonable, or without foundation." Christiansburg Garment 
Co. v. EEOC, 434 U, 8. 412, 421 (1978). 



DELTA AIR LINES, INC. v. AUGUST 367 

346 REHNQTTIST, J., dissenting 

favor oj the offeree." Ante, at 348. After reciting the pro- 
cedural history of the case in the lower courts, the Court crit- 
icizes the Court of Appeals for its failure to confront "the 
threshold question whether Rule 68 has any application to a 
case in which judgment is entered against the plaintiff-offeree 
and in favor of the defendant-offeror." Ante, at 350. The 
Court's resolution of the case turns on that threshold ques- 
tion and it finds that the answer "is dictated by the plain 
language, the purpose, and the history of Rule 68." Ibid. 

Though the ultimate result reached by the Court is the 
same as that of the Court of Appeals, the difference in ap- 
proach of the two opinions could not be more striking. The 
Court of Appeals began its opinion by stating that "[t]he is- 
sue presented in this appeal is whether the awarding of costs 
under Rule 68 of the Federal Rules of Civil Procedure is man- 
datory or discretionary if the final judgment obtained by 
plaintiff is not more favorable than the defendant's offer." 
600 F. 2d 699, 699-700 (1979) (emphasis supplied). The 
Court of Appeals relied primarily on the ground that this was 
a private action under Title VII of the Civil Rights Act of 
1964, and it was not willing "to permit a technical interpre- 
tation of a procedural rule to chill the pursuit of that high 
objective." Id., at 701. The court explained that a $450 
offer in a case such as this made the semantically mandatory 
language of Rule 68 discretionary and permitted, but did not 
require, the District Court to award costs when, "viewed as 
of the time of the offer along with consideration of the final 
outcome of the case, the offer can be seen to have been made 
in good faith and to have had some reasonable relationship 
in amount to the issues, litigation risks, and expenses antici- 
pated and involved in the case." Id., at 702. The Court of 
Appeals reasoned that this "liberal" not "technical" reading 
of Rule 68 is justified, at least in a Title VII case, and that 
it did not need to decide whether the same approach should 
be taken in other types of cases. Ibid. 



368 OCTOBER TERM, 1980 

REHNQTTIST, J , dissenting 450 TJ. S. 

To the Court of Appeals, the mandatory language of Rule 
68, at least in a Title VII case, is only discretionary where 
the offer is not "reasonable" and in "good faith" (neither of 
which qualifications are found in Rule 68). But to this 
Court, the Court of Appeals was entirely in error in even 
reaching that question because Rule 68 has no applicability 
to a case in which a judgment is entered against the plaintiff- 
offeree and in favor of the defendent-offeror. Totally ignor- 
ing the common-sense maxim that the greater includes the 
lesser, the Court concludes that its answer is "dictated by the 
plain language, the purpose, and the history of Rule 68." 

Two of the three reasons advanced by the Court of Ap- 
peals in support of its opinion permitting the District Court 
not to impose costs on respondent in this case are squarely 
negated by the reasoning of the Court's opinion. The "plain 
language" of the Rule refers neither to an exception for Title 
VII cases nor to a requirement that an offer be "reasonable" 
or made "in good faith." 

Although Title VII provides for elaborate conciliation 
machinery before suit, the plaintiff who receives a "right to 
sue" letter from the EEOC is simply authorized to sue the 
employer in the appropriate United States district court. 
There is no intimation in the Federal Rules of Civil Proce- 
dure or Title VII that such lawsuit will not be conducted in 
accordance with the Federal Rules of Civil Procedure. In 
fact, Rule 1 of the Federal Rules specifically provides that 
"[t]hese rules govern the procedure in the United States dis- 
trict courts in all suits of a civil nature whether cognizable 
as cases at law or in equity, or in admiralty, with the excep- 
tions stated in Rule 81." Rule 81 sets forth a list of excep- 
tions including bankruptcy proceedings and proceedings in 
copyright brought under Title 17 of the United States Code, 
but proceedings brought under Title VII are not included. 
Presumably, the "plain language" of the Federal Rules and 
in particular Rule 68, as well as the "plain language" of the 
applicable provisions of Title VII, would bring the Court to 



DELTA AIR LINES, INC, v. AUGUST 369 

346 REHNQUIST, J., dissenting 

reject any special treatment with respect to costs for a Title 
VII lawsuit. 

In my view, there is also no basis for reading into Rule 68 
any additional conditions for bringing the Rule into play 
other than those which are specifically contained in the pro- 
visions of the Rule itself. I assume that the Court would 
agree with this approach in view of its fondness for the "plain 
meaning" canon of statutory construction. Therefore, the 
best and shortest response to the Court of Appeals' sugges- 
tion that a Rule 68 offer must be "reasonable" and made in 
"good faith" is that Rule 68 simply does not incorporate any 
such requirement; it deprives a district court of its traditional 
discretion under Rule 54 to disallow costs to the prevailing 
party in the strongest verb of its type known to the English 
language "must" : 

"If the judgment finally obtained by the offeree is not 
more favorable than the offer, the offeree must pay the 
costs incurred after the making of the offer. . . ." Fed. 
Rule Civ. Proc. 68. (Emphasis added.) 

Over a half century ago the Court of Appeals for the Sixth 
Circuit said "the word 'must' is so imperative in its mean- 
ing that no case has been called to our attention where that 
word has been read 'may.' " Berg v. Merchant, 15 F. 2d 990 
(1926), cert, denied, 274 U. S. 738 (1927). To import into 
the mandatory language of Rule 68 a requirement that the 
tender of judgment must be "reasonable" or made in "good 
faith" not only rewrites Rule 68, but also puts a district court 
in the impossible position of having to evaluate such uncer- 
tain and nebulous concepts in the context of an "offer of 
judgment" that in many cases may have been made years 
past. 

Since the Court relies on the "plain meaning" of Rule 68, 
it may be well to set that Rule out verbatim before analyzing 
its argument. Rule 68 provides in pertinent part: 

"At any time more than 10 days before the trial be- 



370 OCTOBER TERM, 1980 

REHNQTJIST, J., dissenting 450 U.S. 

gins, a party defending against a claim may serve upon 
the adverse party an offer to allow judgment to be taken 
against him for the money or property or to the effect 
specified in his offer, with costs then accrued. If within 
10 days after the service of the offer the adverse party 
serves written notice that the offer is accepted, either 
party may then file the offer and notice of acceptance 
together with proof of service thereof and thereupon the 
clerk shall enter judgment. . . . If the judgment finally 
obtained by the offeree is not more favorable than the 
offer, the offeree must pay the costs incurred after the 
making of the offer." (Emphasis added.) 

The Court asserts that the result reached by, if not the rea- 
soning of, the Court of Appeals is correct because Rule 68, 
by its "plain language/' applies only in cases in which a 
"judgment [is] finally obtained by the offeree." The Rule, 
therefore, does not apply in a case such as this where the 
defendant prevailed i. e., because no judgment was "ob- 
tained by the offeree." If Rule 68 does not apply, the deter- 
mination regarding costs is governed by Federal Rule of Civil 
Procedure 54 (d), which grants a district court the discretion 
to award the defendant costs as the "prevailing party," but 
does not require it to do so. The Court argues that the 
"plain language" of Rule 68, its "history," and "policy" rea- 
sons support this interpretation of the Rule. 

I read both the "plain language" of the Rule and its his- 
tory quite differently than does the Court. According to it, 
a plaintiff "offeree" under the terms of Rule 68 must win 
in the trial court in order to "obtain" a "judgment" within 
the meaning of that Rule. But we may call upon the various 
canons of statutory construction to pass before us in review 
as many times as we choose without being reduced to this 
anomalous conclusion. 

The term "judgment" is defined in Rule 64 (a) of the Fed- 
eral Rules of Civil Procedure to mean a "decree and any 



DELTA AIR LINES, INC. v. AUGUST 371 

346 RBHNQTTIST, J., dissenting 

order from which an appeal lies." Unquestionably, respond- 
ent "obtained" an "order from which an appeal lies" when 
the District Court entered its judgment in this case. Cer- 
tainly, respondent did not subscribe to the Court's reasoning 
because she immediately sought review in the Court of Ap- 
peals of the "judgment" which had been entered against her. 
Rule 68, when construed to include a traditional "take noth- 
ing" judgment, see, Appendix to Fed. Rules Civ. Proc., Forms 
31 and 32, 28 U. S. C. App., p. 530, as well as a judgment in 
favor of the plaintiff but less than the amount of the offer, 
thus fits with the remaining parts of the Federal Rules of 
Civil Procedure pertaining to judgments and orders in a man- 
ner in which the drafters of the Rule surely must have in- 
tended. To circumscribe Rule 68 in the manner in which the 
Court does is to virtually cut it adrift from the remaining 
related portions of the Federal Rules of Civil Procedure, a 
construction which could be justified only by the strongest 
considerations of history and policy. Our cases do not sup- 
port the proposition that such a construction will never be 
given to a rule or statute, but they do indicate that only the 
strongest support in the legislative history warrants such a 
result. Chemehuevi Tribe of Indians v. FPC, 420 U. S. 395 
(1975). 

I think my reading of this part of Rule 68 is entirely con- 
sistent with the Rule's history. When the Federal Rules of 
Civil Procedure were adopted in 1938, the pertinent part of 
Rule 68 read: 

"If the offer is not so accepted it shall be deemed with- 
drawn and evidence thereof is not admissible. // the 
adverse party fails to obtain a judgment more favorable 
than that offered, he shall not recover costs in the district 
court from the time of the offer but shall pay costs from 
that time." (Emphasis supplied.) 

Obviously, the event that "triggered" the operation of the 
original Rule 68 was the failure of the plaintiff to obtain 



372 OCTOBER TERM, 1980 

REHNQTJIST, J., dissenting 450 U. S. 

a judgment more favorable than that offered. Just as ob- 
viously, the plaintiff in this case did not meet her burden of 
obtaining a judgment more favorable than the $450 she was 
offered. The operation of Rule 68 was not intended to 
change when this part of the Rule was amended in 1948 to 
its present form. The Advisory Committee Notes to the 
1948 amendment explain the reasons for the amendment 
none of which give any indication that Congress decided to 
take away the benefits of the Rule to a defendant who made 
a Rule 68 offer but later prevailed on the merits. 1 

As noted by the Court, the 1938 Advisory Committee Notes 
to the original version of the Rule cite to three state statutes 
as illustrations of the operation of the Rule. These three 
statutes, like the text of the original Rule 68, all mandated 
imposition of costs on a plaintiff who rejected an offer of 
judgment and then later failed to recover a judgment more 
favorable than the offer. 2 This is the identical situation 



1948 amendment to Rule 68 added the following two sentences: 
"If the judgment finally obtained by the offeree is not more favorable 
than the offer, the offeree must pay the costs incurred after the making 
of the offer The fact that an offer is made but not accepted does not 
preclude a subsequent offer." The Advisory Committee Notes explain 
that the two new sentences were added to assure "a party the right to 
make a second offer where the situation permits as, for example, where 
a prior offer was not accepted but the plaintiff's judgment is nullified 
and a new trial ordered, whereupon the defendant desires to make a sec- 
ond offer." Advisory Committee Notes on Amendment to Rules of Civil 
Procedure, 28 U. S. C. App., pp. 499-500, 5 F. R. D. 433, 483 (1946), 7 
J. Moore & J. Lucas, Moore's Federal Practice f 68.01, p. 68-3 (1979). 
The change in the language of the Rule had nothing to do with whether or 
not it was intended to operate in a situation where the defendant prevailed. 
2 The Minnesota statute referred to by the 1938 Advisory Notes, 2 
Minn. Stat. 9323 (Mason 1927), provided: 

"At least ten days before the term at which any civil action shall stand 
for trial the defendant may serve on the adverse party an offer to allow 
judgment to be taken against him for the sum, or property, or to the 
effect therein specified, with costs then accrued If within ten days there- 
after such parties shall give notice that the offer is accepted, he may file 



DELTA AIR LINES, INC. v. AUGUST 373 

346 REHNQTJIST, J., dissenting 

which the plaintiff here finds herself in. Moreover, in each 
of these three States, the general statutes providing for re- 
covery of costs by prevailing defendants was, unlike Rule 
54 (d), mandatory. See, e. g., 4 Mont. Rev. Codes Ann. 
9787, 9788 (1935); 2 Minn. Stat. 9471 (Mason 1927); 
and N. Y. Civ. Prac. Law 1470-1475 (Thompson 1939). 
As a result, the state cases cited by the Court do not address 
the situation in which a defendant has prevailed on the merits 



the same, with proof of such notice, and thereupon the clerk shall enter 
judgment accordingly. Otherwise the offer shall be deemed "withdrawn, 
and evidence thereof shall not be given; and if a more favorable judgment 
be not recovered no costs shall be allowed, but those of the defendant 
shall be taxed in his favor! 9 (Emphasis supplied.) 

The Montana statute, 4 Mont. Rev. Codes Ann. 9770 (1935), provided: 
"The defendant may, at any time before the trial or judgment, serve upon 
the plaintiff an offer to allow judgment to be taken against him for the sum 
or property, or to the effect therein specified. If the plaintiff accept the 
offer, and give notice thereof within five days, he may file the offer, with 
proof of notice of acceptance, and the clerk must thereupon enter judg- 
ment accordingly. If the notice of acceptance be not given, the offer is 
to be deemed withdrawn, and cannot be given in evidence upon the trial; 
and if the plaintiff fail to obtain a more favorable judgment, he cannot 
recover costs, but he must pay the defendant's costs from the time of the 
offer! 9 (Emphasis supplied.) 

The New York statute, N. Y. Civ. Prac. Law 177 (Thompson 1939), 
provided: 

"Before the trial, the defendant may serve upon the plaintiff's attorney a 
written offer to allow judgment to be taken against him for a sum, or 
property, or to the effect, therein specified, with costs. If there be two 
or more defendants, and the action can be severed, a like offer may be 
made by one or more defendants against whom a separate judgment may 
be taken. If the plaintiff, within ten days thereafter, serve upon the de- 
fendant's attorney a written notice that he accepts the offer, he may file 
the summons, complaint, and offer, with proof of acceptance, and there- 
upon the clerk must enter judgment accordingly. If notice of acceptance 
be not thus given, the offer cannot be given in evidence upon the trial; 
but, if the plaintiff fail to obtain a more favorable judgment, he cannot 
recover costs from the time of the offer, but must pay costs from that 
time! 9 (Emphasis supplied.) 



374 OCTOBER TERM, 1980 

REHNQTTIST, J., dissenting 450 U.S. 

because in that situation the shifting of costs was mandatory 
under state law. It is, therefore, difficult for me to under- 
stand how it can be argued that Congress, seeking to pattern 
Rule 68 after the procedure used in these three States, could 
have possibly intended to immunize plaintiffs from the opera- 
tion of the Rule and the concomitant costs it imposes simply 
because they lost their cases on the merits. It is also note- 
worthy that the lower court cases that have confronted the 
situation of a prevailing defendant seeking to recover its costs 
under Rule 68 have all concluded that such recovery is per- 
missible. See Dual v. Cleland, 79 F. R. D. 696 (DC 1978) ; 
Mr. Hanger, Inc. v. Cut Rate Hangers, Inc., 63 F. R. D. 607 
(EDNY 1974) ; Gay v. Waiters' & Dairy Lunchmen's Union, 
Local No. SO, 86 F. R. D. 500 (ND Cal. 1980) . 8 

Contrary to the view of the Court, I think that Rule 68 and 
Rule 54 (d) are entirely consistent with one another when 
read in a manner faithful to their actual language; indeed, 
the language of these Rules must be twisted virtually beyond 
recognition, and that of Rule 68 parsed virtually out of exist- 
ence, to say that the latter Rule does not apply in a situation 
such as this simply because the petitioner prevailed. Rule 
54 (d) itself contemplates the removal from the trial judge 
of the discretion of awarding costs when by its express terms 
it excepts situations where "express provision therefor is 
made ... in these rules." It cannot be doubted that the 



3 It should be noted that the commentators on which the Court rdies so 
heavily either do not support its position or simply fail to address it. 
Contrary to its suggestion, Wright and Miller's treatise assumes that 
Rule 68 operates in a manner that would allow a prevailing defendant the 
benefits of the Rule. Their treatise provides: "If the offer is not accepted, 
and the ultimate judgment is not more favorable than what was offered, 
the party who made the offer is not liable for costs accruing after the date 
of the offer." 12 C. Wright & A. Miller, Federal Practice and Procedure 
3001, p 56 (1973) (emphasis supplied). Thus, Wright and Miller en- 
visioned that costs would be shifted unless the plaintiff recovered a judg- 
ment more favorable than the offer a hurdle that respondent here was 
unable to clear, 



DELTA AIR LINES, INC. v. AUGUST 375 

346 REH^-QUIST, J., dissenting 

mandatory language of Rule 68 is as clear a case of "express 
provision" as could be imagined. 

While I do not think it necessary to address the "policy" 
considerations relied upon by the Court when the intent of 
the drafters of the Rule is as plain as it is here, I do think 
it appropriate to note that no policy argument will con- 
vince me that a plaintiff who has refused an offer under Rule 
68 and then has a "take nothing" judgment entered against 
her should be in a better position than a similar plaintiff who 
has refused an offer under Rule 68 but obtained a judgment 
in her favor, although in a lesser amount than that which was 
offered pursuant to Rule 68. The construction of Rule 68 
urged by the Court would place in a better position a defend- 
ant who tendered $10,000 to a plaintiff under Rule 68 in a 
case where the plaintiff was awarded $5,000 than where the 
same tender was made and the plaintiff was awarded nothing. 

One final argument that has been pressed as a reason for 
affirmance of the Court of Appeals merits response. Rule 
68 requires a party defending against a claim to serve upon 
the adverse party "an offer to allow judgment to be taken 
against him for the money or property or to the effect speci- 
fied in his offer, with costs then accrued." A literal reading 
of the Rule appears to entitle a plaintiff to all costs accrued 
at the time of the offer. If the offer is accepted, the defend- 
ant must pay whatever costs the court determines were tax- 
able at the time of the offer. Thus, a valid Rule 68 offer 
cannot be made if it limits or excludes any of the costs ac- 
crued on the date of the offer. 

It is argued that because "costs" are nowhere defined in the 
Federal Rules of Civil Procedure it is necessary to look else- 
where to determine the types of costs which are assessable 
under Rule 68. Title VII does not contain a general def- 
inition of the term "costs," but it does specify that a court, 
in its discretion, shall allow the "prevailing party" a "reason- 
able attorney's fee as part of the costs . . . " 42 IT. S. C. 
2000e-5 (k). This Court has interpreted this provision to 



376 OCTOBER TERM, 1980 

REHNQTJIST, J., dissenting 450 U.S. 

mean that a prevailing plaintiff shall receive her costs "ex- 
cept in unusual circumstances," and we held last Term that 
a claim to an attorney's fee is not defeated if the plaintiff 
prevails by "settlement rather than through litigation." 
Maker v. Gagne, 448 U. S. 122, 129 (1980). Because a Rule 
68 offer of judgment is a proposal which by definition stipu- 
lates that the plaintiff shall be treated as the prevailing party, 
as the argument runs, the cost component of Rule 68 in a 
Title VII case must include a component for plaintiff's rea- 
sonable attorney's fees accrued as of the date of the offer. 
Petitioner's offer in this case under this theory did not tech- 
nically comply with Rule 68 because it limited the amount 
of attorney's fees to be recovered by the respondent and thus 
did not provide for the recovery of all costs accrued at the 
date of the offer. 4 

This argument, although superficially appealing, does not 
survive careful scrutiny. Our analysis must focus on the 
meaning of the word "costs" contained in Rule 68 and we 
are aided in this analysis by our decision only last Term in 
Roadway Express, Inc. v. Piper, 447 U. S. 752 (1980). There 
we were confronted with the question of whether the word 
"costs" contained in 28 U. S. C. 1927 included attorney's 
fees in the context of a civil rights lawsuit. Section 1927 
provides that lawyers who multiply court proceedings vexa- 
tiously may be assessed the excess "costs" they create. How- 
ever, 1927, like Rule 68, did not define the critical word 
"costs." A District Court had concluded that because the 
civil rights statutes allow a prevailing party to recover attor- 
ney's fees as part of the costs of litigation, it was authorized 
to award attorney's fees as part of the sanction it imposed 

* The actual text of the offer made by the petitioner to the respondent 
in this case reads in pertinent part as follows: 

"Pursuant to Rule 68 of the Federal Rules of Civil Procedure, defend- 
ant hereby offers to allow judgment to be taken against it in this action, 
in the amount of $450, which shall include attorney's fees, together with 
costs accrued to date/' 



DELTA AIR LINES, INC. v. AUGUST 377 

346 BEHNQTTIST, J., dissenting 

under 1927. We rejected this conclusion and in so doing 
we stated that in construing the term "costs" it was appropri- 
ate to look to the contemporaneous understanding of the term 
when the statute was enacted. We then assumed that Con- 
gress followed the recognized "American rule" that attorney's 
fees were not included within the definition of "costs" when 
it enacted 1927. 447 II S., at 759. Without any evidence 
that Congress wished to alter or amend the definition of 
"costs" by the passage of the civil rights fee-shifting statutes, 
42 U. S. C. 1988 and 2000e-5 (k), we were unwilling to 
expand its historical definition. 

A conclusion similar to that reached in Roadway Express is 
equally sound here when determining whether "costs" as used 
in Rule 68 include attorney's fees in the context of a civil 
rights suit. Certainly, the "contemporaneous understanding" 
of "costs" when the Federal Rules of Civil Procedure were 
promulgated in 1938 did not include attorney's fees any more 
than it did in 1813 when the predecessor to 1927 was en- 
acted. The legislative history of Rule 68 indicates no in- 
tent to deviate from the common meaning of costs and this 
conclusion is bolstered by the fact that when the authors of 
the Rules intended that attorney's fees be recovered, such 
fees were specifically mentioned. See, e. g., Fed. Rule Civ. 
Proc. 37, which allows "reasonable expenses . . . including 
attorney's fees," as a sanction for discovery abuses. 

There is likewise no evidence of any congressional intent 
to alter the meaning of the word "costs" in Rule 68 by the 
passage of the civil rights statutes. Nothing in the fee-shift- 
ing provisions of these statutes or their legislative history has 
come to my attention which would suggest that Congress in- 
tended to amend Rule 68 by adding attorney's fees to other- 
wise taxable "costs" under that Rule. 

It is also worth noting that the logic that would include 
attorney's fees as recoverable costs under Rule 68 would also 
allow a similar recovery of attorney's fees in other litiga- 
tion under statutes which permit the award of attorney's fees. 



378 OCTOBER TERM, 1980 

RBHNQTJIST, J., dissenting 450 U. S. 

In 1975, this Court noted in Alyeska Pipeline Co. v. Wilder- 
ness Society, 421 TJ. S. 240, that 29 statutes allow federal 
courts to award attorney's fees in certain suits. Id., at 260- 
261, n. 33. Some of these statutes define attorney's fees as 
an element of costs while others separate fees from other tax- 
able costs. To construe Rule 68 to allow attorney's fees to 
be recoverable as costs would create a two-tier system of cost- 
shifting under Rule 68. Plaintiffs in cases brought under 
those statutes which award attorney's fees as costs and who 
are later confronted with a Rule 68 offer would find them- 
selves in a much different and more difficult position than 
those plaintiffs who bring actions under statutes which do not 
have attorney's fees provisions. No persuasive justification 
exists for subjecting these plaintiffs to differing penalties for 
failure to accept a Rule 68 offer and no persuasive justifica- 
tion can be offered as to how such a reading of Rule 68 would 
in any way further the intent of the Rule which is to en- 
courage settlement. 

Finally, if the term "costs" in Rule 68 includes attorney's 
fees, then Title VII plaintiffs who reject Rule 68 offers may 
find themselves in the unenviable position of having to absorb 
a defendant's attorney's fees if they fail to recover a judg- 
ment as favorable as the defendant's offer. This could seri- 
ously undermine the purposes behind the attorney's fees 
provisions of the Civil Rights Act, and yet there is no prin- 
cipled way to allow attorney's fees to be recovered as costs 
under Rule 68 in some Title VII situations while prohibiting 
such recovery in others. As we noted in Roadway Express 
in a similar context, to select on an ad hoc basis those fea- 
tures of 1988 and 2000e-5 (k) that should be read into 
Rule 68 would not only fundamentally alter the nature of 
Rule 68 but would also constitute standardless judicial law- 
making. Accordingly, in my view the offer made by the peti- 
tioner in this case fully complied with the terms of Rule 68 
even though it attempted to place a limit on the ultimate 
amount of attorney's fees to be recovered. Because the 



DELTA AIE LINES, INC. v. AUGUST 379 

346 REHNQTTIST, J., dissenting 



tt 



: costs" provision in Rule 68 does not encompass attorney's 
fees, those fees are just as susceptible to compromise and 
settlement as are other inchoate consequences of liability 
such as compensatory damages or backpay. 5 

In sum, I would reject the "plain meaning" basis of the 
Court's opinion interpreting Rule 68 because, in my view, 
the Rule must be read not only contrary to its "plain mean- 
ing" but also woodenly and perversely in order to reach the 
conclusion that a prevailing defendant who had made an offer 

5 The nearly 100 Rules of Federal Civil Procedure have numerous and 
often differing purposes, but it bears repeating that the purpose behind 
Rule 68, which this case involves, is to promote settlement and thereby 
diminish the number of trials necessary to resolve the cases which are 
filed in the federal courts. Were we to hold that attorney's fees were not 
subject to settlement and compromise (in the same way as the issues of 
liability, damages, and other remedies) as a part of a Rule 68 offer, we 
would frustrate the purpose of this Rule. The defendant would be put 
in the unenviable position of having to make an offer of judgment with- 
out knowing what his potential liability in terms of attorney's fees would 
be over and above the amount of the Rule 68 offer. While traditional 
"costs" can never be known to a certainty at the time of the making of 
a Rule 68 offer, knowledgeable counsel for both defendant and plaintiff 
can assess at least their order of magnitude. Attorney's fees, however, 
are a different breed of cat, not only because they can be extraordinarily 
extensive compared to traditional items of costs, but also because neither 
the plaintiff nor the defendant can know with any degree of certainty how 
much of the attorney's fees a prevailing plaintiff seeks will be allowed by 
a trial court exercising its discretion pursuant to Rule 54. Thus to hold 
that such fees were by definition open-ended and not subject to com- 
promise would mean that an attorney representing a defendant and con- 
vinced that an offer pursuant to Rule 68 might well result in a settlement 
of the case if attorney's fees were subject to settlement and compromise 
could never confidently persuade his client that it would be in the client's 
best interest to make such an offer because he would of necessity have to 
advise the client in cases where attorney's fees are recoverable that such 
recovery would be over and above the amount of the Rule 68 offer. Such 
a caveat in the attorney's recommendation will most likely prove to deter 
the client from making a Rule 68 offer in the first place, with the result 
that fewer suits will bo settled and more will be tried. Such a construc- 
tion of Rule 68, therefore, hardly furthers the purposes behind the Rule. 



380 OCTOBER TERM, 1980 

RBHNQUIST, J., dissenting 450 U.S. 

pursuant to Rule 68 should be placed in a worse position 
than one who has lost to the plaintiff and had a judgment 
entered against him accordingly, but for an amount less than 
the amount tendered under Rule 68. This is "plain mean- 
ing" with a vengeance; a vengeance which neither the Rules 
Committee, this Court, nor Congress in their various roles in 
the adoption of the Rules could have contemplated. 

It may be said that to read the Rule according to its plain 
meaning as I see it will place barriers in the way of plain- 
tiffs' suing defendants. The short answer to this argument 
is that any provisions such as Rule 68 designed to promote 
settlement, rather than litigation, of claims is bound to make 
a plaintiff take a look at his "hole card." By the same token, 
the availability of such a procedure is bound to make the 
defendant take a look at his "hole card" in order to make cer- 
tain that he is using every means available to both avoid 
costly protracted litigation and possible loss of the case if it 
goes to trial. The Rule interpreted in accordance with its 
"plain meaning" offers a defendant a method for preventing 
further accrual of taxable costs in the case of inflated or 
"nuisance" lawsuits; if the plaintiff is of the opinion that the 
offer is too low to be worth acceptance or even serious con- 
sideration, he need not even respond to it and the case will, 
unless settled in some other manner, go to trial. By follow- 
ing such a course, a plaintiff who obtains a judgment in ex- 
cess of the defendant's Rule 68 offer loses absolutely nothing; 
a plaintiff against whom a "take nothing" judgment is en- 
tered loses only the possibility that a district court might ex- 
ercise its discretion and not award costs to the prevailing 
defendant. Although the vast increase in the amount of 
litigation in this Nation today is not a valid reason for twist- 
ing rules or statutes in order to reduce such volume, if the 
plain meaning of a rule may have a tendency to encourage 
settlement rather than trial, this is surely not an unfortunate 
mishap in our system of administering justice. 



DIAMOND v. BRADLEY 381 

Per Curiam 

DIAMOND, COMMISSIONER OF PATENTS AND 
TRADEMARKS v. BRADLEY ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF CUSTOMS AND 

PATENT APPEALS 

No. 79-855. Argued October 14, 1980 Decided March 9, 1981 
600 F. 2d 807, affirmed by an equally divided Court. 

Deputy Solicitor General Wallace argued the cause for 
petitioner. With him on the briefs were Solicitor Gen- 
eral McCree, Assistant Attorney General Litvack, Harriet 
S. Shapiro, Robert B. Nicholson, Frederic Freilicher, Joseph 
F. Nakamura, and Thomas E. Lynch. 

Nicholas Prasinos argued the cause for respondents. With 
him on the briefs were Faith F. Driscoll, Henry L. Hanson, 
and Ronald T. Reiling* 

PER CURIAM. 

The judgment is affirmed by an equally divided Court. 

TECE CHIEF JUSTICE took no part in the consideration or 
decision of this case. 



*Edward S. Irons, Mary Helen Sears, and Robert P. Beshar filed a 
brief for National Semiconductor Corp. as amicus curiae urging reversal. 

Briefs of amid curiae urging affirmance were filed by Donald R. Dunner, 
Kenneth E. Kuffner, and Travis Gordon White for the American Patent 
Law Association, Inc.; by Reed C. Lawlor and James W. Geriak for the 
Los Angeles Patent Association; and by Morton C. Jacobs for Applied 
Data Research, Inc., et aL 

William James Beard and John F. Tregoning filed a brief for Halliburton 
Services as amicus curiae. 



382 OCTOBER TERM, 1980 

Per Curiam 450 U.S. 

DOE ET AL. v. DELAWARE 

APPEAL, FROM TECE SUPREME COURT OF DE1LAWARE 
No. 79-5932. Argued January 12, 1981 Decided March 9, 1981 
Appeal dismissed. Reported below: 407 A. 2d 198. 

Gary A. Myers argued the cause for appellants. With him 
on the briefs was Michael Boudin. 

Regina Mullen Small, State Solicitor of Delaware, argued 
the cause for appellee. With her on the brief were John 
A. Parkins, Jr., Assistant State Solicitor, and Roger A. Akin, 
Thomas M. LaPenta, and Timothy A. Casey, Deputy Attor- 
neys General,* 

PER CTTRIAM. 

The appeal is dismissed for want of a properly presented 
federal question. 

JUSTICE BRENNAN, with whom JUSTICE WHITE joins, 
dissenting. 

Appellants, a half brother and sister, are the natural par- 
ents of five children who were in the custody of the Division 
of Social Services of the Delaware Department of Health and 
Social Services at the beginning of this litigation. 1 After de- 

*Carol R. Golubock, Daniel Yohalem, and Marian Wright Edelman 
filed a brief for the American Orthopsychiatric Association et al. as amid 
curiae urging reversal. 

Briefs of amid curiae were filed by Marda Robinson Lowry and Bruce 
J. Ennis for the American Civil Liberties Union; by Janet Fink, Carol 
Sherman, Jane M. Sufian, and Henry S. Weintraub for the Legal Aid 
Society of the City of New York, Juvenile Rights Division; and by 
Douglas J. Besharov and Robert M. Horowitz for the National Associa- 
tion of Counsel for Children et al. 

1 This Court granted appellants' motion to seal the record, 445 U. S. 
949 (1980), and the pseudonyms John Doe and Jane Roe have been sub- 
stituted for appellants' real names. 



DOE v. DELAWARE 383 

382 BRENNAN, J., dissenting 

termining that the children should be put up for adoption, 2 
the Division filed suit pursuant to Delaware law to obtain 
termination of appellants' parental rights over their children. 
The Superior Court of Delaware ordered termination, and the 
Supreme Court of Delaware affirmed. 3 Appellants appealed 
to this Court, arguing that the termination order and the 
Delaware statute authorizing it were unconstitutional. We 
noted probable jurisdiction. 445 TJ. S. 942 (1980). 

The Court today dismisses this appeal for want of a prop- 
erly presented federal question, thereby permitting the ter- 
mination order to remain in effect despite the existence of a 
substantial federal constitutional challenge to the Delaware 
statutory scheme under which the order was entered. 4 Be- 
cause I believe that the federal question was properly pre- 
sented within the definition of that requirement in our cases, 
I dissent from this dismissal. Instead, I would vacate the 
judgment below, and remand for reconsideration in light of 



2 See Tr. of Oral Arg. 35. The Division has apparently not made any 
formal arrangements for adoptive homes for the children. See Del. Code 
Ann., Tit. 13, 907-908 (1975) (making termination of the parental 
rights of the natural parents a prerequisite to adoption in the absence of 
the consent of the natural parents). 

3 The order of termination issued orally by the Superior Court on 
September 12, 1975, App. to Juris. Statement 5b, was initially reversed by 
the Delaware Supreme Court for failure to decide whether termination 
of parental rights was in the best interests of the children, as required by 
Del. Code Ann., Tit. 13, 1108 (1975). App. to Juris. Statement Ic. On 
remand, the Superior Court concluded that Doe and Roe "are incapable of 
providing proper care for their children," and that "it is in the best 
interests of the children that their parental rights of the children be ter- 
minated." Id., at 3d. The Delaware Supreme Court affirmed. In re 
Five Minor Children, 407 A. 2d 198 (1979). 

* The Court apparently does not question the substantiality of the fed- 
eral question presented by this appeal, since it is dismissing the appeal 
"for want of a properly presented federal question" rather than "for want 
of [a] substantial federal question," e. g., Black v. Payne, 438 TL S. 909 
(1978), or "for want of a properly presented substantial federal question," 
e. g., Oreenwald v. Maryland, 363 U. S. 721 (1960). 



384 OCTOBER TERM, 1980 

BRENDAN, J., dissenting 450 U.S. 

supervening changes in the factual circumstances and the ap- 
plicable state law. 

I 

Appellants challenge the constitutionality of certain por- 
tions of the former Del. Code Ann., Tit. 13, 1101-1112 
(1975), in effect while this litigation was pending in the state 
courts. These provisions established a "procedure for termi- 
nation of parental rights for the purpose of adoption or, if a 
suitable adoption plan cannot be effected, for the purpose of 
providing for the care of the child by some other plan which 
may or may not contemplate the continued possibility of 
eventual adoption." 1103. Petitions for termination of 
parental rights could be filed by certain specified categories 
of persons, including the Division. 1104 (8). Upon a find- 
ing by the Superior Court that the parents were "not fitted 
to continue to exercise parental rights," 1103 (4), and that 
termination of existing parental rights would be "in the best 
interests of the child," the court was required to issue an 
order of termination, and to transfer parental rights to an- 
other person, organization, or agency. 1108 (a). The ef- 
fect of the termination order was "that all of the rights, 
duties, privileges and obligations recognized by law between 
the [parents] and the child shall forever thereafter cease to 
exist as fully and to all intents and purposes as if the child 
and the [parents] were and always had been strangers." 
1112. Either an order of termination or the consent of the 
natural parents was required before children in the custody 
of the State could be placed for adoption. 907-908. 

Appellants argue here, as they did at each stage of the 
litigation in the state courts, that this statutory scheme for 
termination of parental rights was invalid under the United 
States Constitution. Specifically, they contend: (1) that 
Del. Code Ann., Tit. 13, 1103 (4) (1975), which provides 
for such termination where the parent is "not fitted," is 
unconstitutionally vague and indefinite; (2) that a higher 



DOE v. DELAWARE 385 

382 BRENNAN, J., dissenting 

standard than the mere "preponderance of the evidence" is 
required to terminate parental rights ; and (3) that substan- 
tive due process forbids termination of parental rights in the 
absence of a demonstration of a compelling state interest, in 
the form of specific findings of existing or threatened injury 
to the child. 5 There is no doubt that appellants raised their 
federal constitutional claim in a timely manner in both the 
Superior Court 6 and the Supreme Court 7 of Delaware, nor 
that the Delaware Supreme Court explicitly considered and 
rejected the federal constitutional challenge. 8 

Dismissal of this appeal for want of a properly presented 
federal question is, therefore, unwarranted. The practice in 
this Court has been to dismiss an appeal taken under 28 
TJ. S. C. 1257 (2) for want of a properly presented federal 
question only when the federal question was not raised at the 
proper juncture in the state-court proceedings or in accord- 
ance with reasonable state rules. Jones v. Florida, 419 U. S. 
1081, 1083 (1974) (BREZSTNAN, J., dissenting) ; Godchaux Co. 
v. Estopinal, 251 TJ. S. 179, 181 (1919); R. Stern & E. Gress- 
man, Supreme Court Practice 38O-381 (5th ed. 1978). 9 See, 

5 Appellants' first argument "draw[s] in question the validity of a 
statute of [a] state on the ground of its being repugnant to the Constitu- 
tion ... of the United States/' and is therefore within this Court's ap- 
pellate jurisdiction. 28 U. S. C. 1257 (2). We may therefore assume 
jurisdiction to decide the second and third issues in the case as well. 
Cox Broadcasting Corp. v. Colin, 420 U. S. 469, 487, n. 14 (1975); 
Prudential Ins. Co. v. Cheek, 259 TJ. S. 530, 547 (1922). 

6 App. to Juris. Statement 2i-6i, 8i. 

7 Opening Brief for Appellants in No. 259 (Del. Sup. Ct.) 2, 8-36; 
Reply Brief for Appellants in No. 259 (Del. Sup. Ct.) 1-21. 

8 407 A. 2d, at 199-200. 

9 In Pearson v. Dodd, 429 TJ. S. 396 (1977), an appeal from the Su- 
preme Court of Appeals of West Virginia was dismissed "for want of a 
properly presented federal question." Id., at 398. A reading of the 'per 
curiam opinion in Pearson reveals, however, that the dismissal should have 
been styled "for want of a substantial federal question," for the Court de- 
termined that the appellant had "no constitutionally protected property 
or entitlement interest" upon which to base her claim. Ibid. 



386 OCTOBER TERM, 1980 

BRENNAN, J., dissenting 450 U.S. 

e. g., Street v. New York, 394 U. S. 576, 581-585 (1969); 
Safeway Stores, Inc. v. Oklahoma Retail Grocers Assn., 360 
U. S. 334 ; 342, n. 7 (1959); Raley v. Ohio, 360 U. S. 423, 
434r-435 (1959); Bailey v. Anderson, 326 U. S. 203, 206-207 
(1945); Asbury Hospital v. Cass County, 326 U. S. 207, 213- 
214 (1945); Charleston Federal Savings & Loan Assn. v. 
Alderson, 324 U. S. 182, 185-187 (1945); Hunter Co. v. Mc- 
Hugh, 320 IT. S. 222, 226-227 (1943); Pennsylvania R. Co. 
v. Illinois Brick Co., 297 U. S. 447, 462-463 (1936); Whitney 
v. California, 274 U. S. 357, 360-361 (1927) ; Live Oak Water 
Users' As&n. v. Railroad Comm'n, 269 U. S. 354, 357-359 
(1926); Rooker v. Fidelity Trust Co., 261 U. S. 114, 116-117 
(1923) ; Zadig v. Baldwin, 166 U. S. 485, 488 (1897) ; Crowell 
v. Randell, 10 Pet. 368, 391-392, 398 (1836); cf. Cardinale v. 
Louisiana, 394 U. S. 437, 438-439 (1969) (dismissal of writ 
of certiorari); Beck v. Washington, 369 U. S. 541, 549-554 
(1962) (same). 10 If the record shows that a federal consti- 
tutional challenge to a state statute was brought to the atten- 
tion of the state court "with fair precision and in due time," 
then "the claim is ... regarded as having been adequately 
presented/ ' New York ex rel. Bryant v. Zimmerman, 278 
U. S. 63, 67 (1928). Indeed, if the highest state court 



10 Dismissal for want of a properly presented federal question is dis- 
tinguishable from dismissal because of the inadequacy of the record for 
deciding the question presented, e. g. f Cowgill v. California, 396 U. S. 371, 
372 (1970) (Harlan, J., concurring); Mitchell v. Oregon Frozen Foods 
Co., 361 II. S. 231 (1960) (dismissal of writ of certiorari) ; but cf. Villa v. 
Van Schaick, 299 U. S. 152, 155-156 (1936) (judgment on appeal vacated 
and remanded because of the inadequacy of the record), and from dis- 
missal because problems of construction and interpretation of state law 
preclude addressing the constitutional issues "in clean-cut and concrete 
form," e. g., Rescue Army v. Municipal Court, 331 U. S. 549, 584 (1947). 
In the instant case, since appellants 1 challenge to the Delaware tennina- 
tion-of-parental-nghts statutes does not depend on the specific facts of the 
case, and since the Supreme Court of Delaware has resolved the questions 
of statutory interpretation relevant to this appeal, dismissal on the latter 
grounds would not be appropriate. 



DOE v. DELAWARE 387 

382 BRENNAN, J., dissenting 

reaches the federal constitutional question and decides it on 
the merits, this Court will consider the case despite any pos- 
sible failure of the litigants to raise the federal question in 
compliance with state procedural requirements. Charleston 
Federal Savings & Loan Assn. v. A Iderson, supra, at 185-186; 
Louisville & Nashville R. Co. v. Hiffdon, 234 U. S. 592, 598 
(1914) ; see Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 
476 (1975). 

Since appellants challenged the constitutionality of the 
Delaware statutory scheme at each stage of the state-court 
litigation, and the Delaware Supreme Court expressly ad- 
dressed the issue, ruling that the termination-of-parentaJ- 
rights procedure was constitutional, this Court's dismissal of 
the appeal for want of a properly presented federal question 
is unprecedented and inexplicable. 11 

11 Nairn v. Nairn, 350 U. S. 985 (1956), is not to the contrary. In 
Nairn, we dismissed the appeal for want of a properly presented federal 
question. In an earlier appeal in the same case, 350 U. S. 891 (1955), 
we vacated the judgment of the Supreme Court of Appeals of Virginia, 
and remanded for further proceedings. Our order explained: 
"The inadequacy of the record as to the relationship of the parties to the 
Commonwealth of Virginia at the time of the marriage in North Carolina 
and upon their return to Virginia, and the failure of the parties to bring 
here all questions relevant to the disposition of the case, prevents the con- 
stitutional issue of the validity of the Virginia statute on miscegenation 
tendered here being considered 'in clean-cut and concrete form, unclouded' 
by such problems. Rescue Army v. Municipal Court, 331 U. S. 549, 584." 
Ibid. 

On remand, the Supreme Court of Appeals of Virginia adhered to its deci- 
sion, and noted that the record reflected the relation of the parties to the 
Commonwealth both before and after the marriage. Nairn v. Naim f 197 
Va. 734, 735, 90 S. E. 2d 849, 850 (1956). This Court's subsequent dis- 
missal of the appeal from that decision for want of a properly presented 
federal question is best understood, therefore, - as attributable to "the 
failure of the parties to bring here all questions relevant to the disposition 
of the case." 350 U. S., at 891. In the instant case, there is no such 
failure. 



388 OCTOBER TERM, 1980 

BRENNAN, J,, dissenting 450 U.S. 

II 

The living situation of appellants and their children has 
changed dramatically since the trial court proceedings in this 
case. Doe and Roe have ceased to live together, thus ending 
the incestuous relationship that formed the predicate for the 
Superior Court's original judgment of unfitness. See App. to 
Juris. Statement 5b. According to their attorney, Doe now 
resides in another State, while Roe has married and now lives 
with her husband and his child in Delaware. Tr. of Oral 
Arg. 4. Doe and Roe have not seen their five children 
since 1975. 12 The children, who ranged in age from 11 
months to 4 years old when the Superior Court issued its first 
order of termination in 1975, are now about 6 to 9 years 
old. The children have never lived together as a family, and 
are now in four separate placements. Appellants' attorney 
stated at oral argument that "the eventual goal of the 
mother" is to obtain custody of her children, and that she 
would permit the father to visit them. Id., at 3. There is 
no evidence on any of these matters in the record because it 
has been closed since December 1976. Id., at 39. 

Moreover, Del. Code Ann., Tit. 13, 1103 (1975), was 
amended, effective July 11, 1980, to alter the standard for 
termination of parental rights. Instead of requiring a find- 
ing of "unfitness" as a predicate for termination, the new 
statute provides for termination if the parents "are not able, 
or have failed, to plan adequately for the child's physical 
needs or his mental and emotional health and development" 
and: 

"a. In the case of a child in the care of an authorized 
agency: 

"1. The child has been in the care of an authorized 

12 Appellants state that the reason they have not seen their children 
since 1975 is that the Division did not permit, them to visit. Brief for 
Appellants 10, n. 17. The record does not reflect, however, when or how 
often appellants attempted to see their children. 



DOE v. DELAWARE 389 

382 BKENNAN, J., dissenting 

agency for 1 year, or there is a history of previous place- 
ment or placements of this child, or a history of neglect, 
abuse, or lack of care of other children by this parent; 
and 

"2. The conditions which led to the child's placement 
still persist, and there appears to be little likelihood that 
those conditions will be remedied at an early date so that 
the child can be returned to the parent in the near future. 

"b. In the case of a child in the home of the stepparent 
or blood relative: 

"1. The child has resided in the home of the. steppar- 
ent or blood relative for a period of at least 1 year; and 

"2. The Court finds the noncustodial parent or parents 
incapable of exercising parental responsibilities, and that 
there appears to be little likelihood such parent or par- 
ents will be able to exercise such parental responsibilities 
in the foreseeable future/' Del. Code Ann., Tit. 13, 
1103 (5) (Supp. 1980). 18 

As stated in Bell v. Maryland, 378 TJ. S. 226, 237 (1964), 
this Court has "long followed a uniform practice where a 
supervening event raises a question of state law pertaining 
to a case pending on review here. That practice is to vacate 
and reverse the judgment and remand the case to the state 
court, so that it may reconsider it in the light of the super- 
vening change in state law." In the exercise of our jurisdic- 
tion under 28 TJ. S. C. 1257, this Court has the power "not 
only to correct error in the judgment under review but to 
make such disposition of the case as justice requires." Pat- 
terson v. Alabama, 294 IT. S. 600, 607 (1935). And, as Chief 
Justice Hughes further observed in Patterson: "[I]n deter- 
mining what justice does require, the Court is bound to con- 

13 In order to require termination of parental rights, the Court must 
also make a '"best interests of the child" determination as required by 
Del. Code Ann., Tit. 13, 1108 (1975), which was not affected by the 1980 
amendments. 



390 OCTOBER TERM, 1980 

BRBNNAN, J., dissenting 450 U.S. 

sider any change, either in fact or in law, which has super- 
vened since the judgment was entered. We may recognize 
such a change, which may affect the result, by setting aside the 
judgment and remanding the case so that the state court may 
be free to act." Ibid. See Giles v. Maryland, 386 IT. S. 66, 
80 (1967) (plurality opinion) ; Thorpe v. Housing Authority, 
386 U. S. 670, 673-674 (1967); Trunkline Gas Co. v. Hardin 
County, 375 TJ. S. 8 (1963); Wolfe v. North Carolina, 364 
U. S. 177, 195, n. 13 (1960) ; Williams v. Georgia, 349 U. S. 
375, 389-391 (1955); State Farm Mutual Automobile Ins. 
Co. v. Duel 324 U. S. 154, 161 (1945) ; Ashcraft v. Tennessee, 
322 U. S. 143, 155-156 (1944); Walling v. James V. Reuter, 
Inc., 321 U. S. 671, 676-677 (1944); New York ex rel. Whit- 
man v. Wilson, 318 U. S. 688, 690-691 (1943); Vanderbark 
v. Owens-Illinois Glass Co., 311 U. S. 538, 542 (1941); State 
Tax Comm'n v. Van Cott, 306 U. S. 511, 515-516 (1939); 
Honeyman v. Hanan, 300 U. S. 14, 25-26 (1937) ; Villa v. 
Van Schaick, 299 U. S. 152, 155 (1936) ; Pagel v. MacLean, 
283 U. S. 266, 268-269 (1931); Missouri ex rel. Wabash R. 
Co. v. Public Service Comm'n, 273 U. S. 126, 130-131 (1927) ; 
Dorchy v. Kansas, 264 U. S. 286, 289, 291 (1924) ; Gulf, C. & 
S. F. R. Co. v. Dennis, 224 U. S. 503, 505-507, 509 (1912); 
see also Piccirillo v. New York, 400 U. S. 548, 556, n. 2 (1971) 
, J., dissenting from dismissal of writ of certiorari). 14 



14 In Sank* v. Georgia, 401 U. S. 144 (1971), this Court dismissed an 
appeal from the Supreme Court of Georgia after both the factual cir- 
cumstances of the case and the applicable state law had so changed that 
the "focus of [the] lawsuit [had] been completely blurred, if not alto- 
gether obliterated, and our judgment on the important issues involved [had 
become] potentially immaterial." Id., at 152. The effect of dismissing 
in Banks, however, was identical to vacating and remanding, because the 
appeal was from an interlocutory order, and the appellants were able to 
raise both state and federal claims, based on the altered circumstances 
and law, on remand. Id., at 14&-150. Moreover, it was doubtful that the 
federal constitutional question in Banks continued to present a justiciable 
controversy sufficient to support Supreme Court jurisdiction in light of the 



DOE v. DELAWARE 391 

382 BRENKAN, J., dissenting 

The instant case falls squarely within the principle of Bell 
and Patterson. The change in the factual circumstances and 
in the applicable state statute might well produce a different 
result under Delaware law. This Court should not decide 
what effect these changes might have under state law, 15 or 
how the Supreme Court of Delaware might decide this case 
under the new circumstances and amended statute. 10 See 
Bell v. Maryland, 378 IT. S., at 237. Nor, however, should 
we "ignore the supervening change in state law and proceed 
to decide the federal constitutional questions presented by 
this case. To do so would be to decide questions which, be- 
cause of the possibility that the state court would now reverse 
the [order of termination], are not necessarily presented for 
decision." Ibid.; see id., at 241; Missouri ex rel. W abash R. 
Co. v. Public Service Comrn'n, supra, at 131 ; Gulf, C> & S. F. 
R. Co. v. Dennis, supra, at 507* 

in 

To argue that the proper disposition of this case is to 
vacate and remand rather than to dismiss for want of a 
properly presented federal question is not merely to quibble 
over words. Appellants in this case are parents who have 
been irrevocably separated from their children by process of 

changed circumstances. Dismissal was therefore an appropriate disposi- 
tion. To similar effect is United States v. Fruehauf, 365 TJ. S. 146 (1961). 

15 That this Court has the power to decide for itself what effect the 
changes would have on the outcome of this case is not doubted. See 
Missouri ex rel. Wabash R. Co. v. Public Service Comm'n, 273 TJ. S. 126, 
131 (1927); Steamship Co. v. Joliffe, 2 Wall. 450, 455-459 (1865). We 
have recognized, however, that the exercise of this power is at times 
"inconsistent with our tradition of deference to state courts on questions 
of state law." Bell v. Maryland, 378 U. S. 226, 237 (1964). To avoid 
this "pitfal[TJ," we have adopted a policy of vacating and remanding the 
judgment where the effect of supervening events presents a question of 
state law. Ibid. 

16 Appellants did not seek a remand in state court based on the changed 
factual circumstances. Tr. of Oral Arg. 12-14. 



392 OCTOBER TERM, 1980 

STEVENS, J., dissenting 450 U.S. 

a state law they contend is unconstitutional. To vacate and 
remand is to recognize that supervening events have made 
further state-court proceedings necessary before this Court 
can reach the constitutional questions; to dismiss is to end 
the litigation, leaving Doe and Roe without any means to 
vindicate their parental rights. 17 See Pagel v. MacLean, 
supra, at 269; Gulf, C. & S. F. R. Co. v. Dennis, supra, at 509. 
The appellate jurisdiction of this Court is not discretionary. 
Hicks v. Miranda, 422 U. S. 332, 344 (1975). Having raised 
a federal constitutional challenge to the former Del. Code 
Ann., Tit. 13, 1103 (4) (1975), under which their parental 
rights were terminated, and having received a final judgment 
from the highest court of the State upholding the statute and 
affirming the termination order, appellants have a right to 
appellate review. I can discern no basis for dismissing this 
appeal for want of a properly presented federal question, and 
therefore respectfully dissent. 

JUSTICE STEVENS, dissenting. 

The wisdom of the Court's policy of avoiding the prema- 
ture or unnecessary adjudication of constitutional questions 
is well established. See Rescue Army v. Municipal Court of 
Los Angeles, 331 U. S. 549, 568-575. That policy provides 

17 1 express no opinion on whether appellants would be eligible for relief 
under Rule 60 of the Rules of Civil Procedure for the Superior Court of 
Delaware, which permits the Superior Court to "relieve a party . . . from 
a final judgment, order, or proceeding for . . . any . . . reason justifying 
relief from the operation of the judgment." 

Nor do I mean to imply that the State, as custodian of the children, 
is without countervailing interest in obtaining a prompt resolution of this 
controversy. Until the order of termination is made final, the children 
may not be placed for adoption. Del, Code Ann., Tit. 13, 907, 908 
(1975). As this Court recognized in Smith v. Organization of Foster 
Families, 431 U. S. 816, 833-838 (1977), the "limbo" in which children 
remain between leaving the care of their natural parents and entering the 
care of permanent adoptive parents may h