WRUEVUE U.S. DEPOSITORY COPY ? 3 1993 KING COUNH dbKArtY SYSTEM DOCUMENTS UNITED STATES REPORTS VOLUME 467 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1983 May 21 Through June 26, 1984 HENRY C. LIND REPORTER OF DECISIONS UNITED STATES GOVERNMENT PRINTING OFFICE WASHINGTON : 1987 For sale by the Superintendent of Documents, U.S. Government Printing Office Washington, DC 20402 JUSTICES OF THE SUPREME COURT DURING THE TIME OF THESE REPORTS WARREN E. BURGER, Chief Justice. WILLIAM J. BRENNAN, Jr., Associate Justice. BYRON R. WHITE, Associate Justice. THURGOOD MARSHALL, Associate Justice. HARRY A. BLACKMUN, Associate Justice. LEWIS F. POWELL, Jr., Associate Justice. WILLIAM H. REHNQUIST, Associate Justice. JOHN PAUL STEVENS, Associate Justice. SANDRA DAY O’CONNOR, Associate Justice. retired POTTER STEWART, Associate Justice. OFFICERS OF THE COURT WILLIAM FRENCH SMITH, Attorney General. REX E. LEE, Solicitor General. ALEXANDER L. STEVAS, Clerk. HENRY C. LIND, Reporter of Decisions. ALFRED WONG, Marshal. ROGER F. JACOBS, Librarian. hi SUPREME COURT OF THE UNITED STATES Allotment of Justices It is ordered that the following allotment be made of the Chief Justice and Associate Justices of this Court among the circuits, pursuant to Title 28, United States Code, Section 42, and that such allotment be entered of record, effective nunc pro tunc October 1, 1981, viz.: For the District of Columbia Circuit, Warren E. Burger, Chief Justice. For the First Circuit, William J. Brennan, Jr., Associate Justice. For the Second Circuit, Thurgood Marshall, Associate Justice. For the Third Circuit, William J. Brennan, Jr., Associate Justice. For the Fourth Circuit, Warren E. Burger, Chief Justice. For the Fifth Circuit, Byron R. White, Associate Justice. For the Sixth Circuit, Sandra Day O’Connor, Associate Justice. For the Seventh Circuit, John Paul Stevens, Associate Justice. For the Eighth Circuit, Harry A. Blackmun, Associate Justice. For the Ninth Circuit, William H. Rehnquist, Associate Justice. For the Tenth Circuit, Byron R. White, Associate Justice. For the Eleventh Circuit, Lewis F. Powell, Jr., Associate Justice. October 5, 1981. Pursuant to the provisions of Title 28, United States Code, Section 42, It is ordered that the Chief Justice be, and he hereby is, assigned to the Federal Circuit as Circuit Justice, effective October 1, 1982. October 12, 1982. (For next previous allotment, see 423 U. S., p. VI.) IV TABLE OF CASES REPORTED Note: All undesignated references herein to the United States Code are to the 1982 edition. Cases reported before page 1201 are those decided with opinions of the Court or decisions per curiam. Cases reported on page 1201 et seq. are those in which orders were entered. Page Aarsvold v. Greyhound Lines, Inc............................. 1253 Aberdeen & Rockfish R. Co. v. United States.................. 1237 Abraham; Pekarski v. ........................................ 1242 Abrams v. Martin.............................................. 253 Acharya v. Young ........................................... 1247 Agricultural Marketing & Barg. Bd.; Mich. Canners & Freezers v. 461 Agriculture Federal Credit Union; Holland v. ................ 1229 Aiken; Gleaton v............................................. 1220 Air Line Pilots v. Thurston........................ 1203,1224,1239 Aispuro v. United States.................................... 1218 Ake v. Oklahoma......................................... 1239,1249 Akin v. Dahl................................................. 1231 Alabama; Carter v............................................ 1228 Alabama; Phillips v.......................................... 1254 Alabama; Wabbington v. ...................................... 1254 Alabama Power Co. v. Sierra Club............................ 1248 Alabama Surface Mining Reel. Comm’n v. Commercial Standard Ins. 1242 Alaska; Corbin v........................................ 1213,1223 Alaska; Ostrosky v........................................... 1201 Alaska Mechanical, Inc.; Hydrokinetics, Inc. v............... 1257 Albrecht, Inc. v. Hudson...................,................. 1237 Alers v. Puerto Rico........................................ 1230 Alexander v. Jennings................................... 1238,1248 Allegheny Mut. Casualty Co. v. United States................. 1243 Alley v. United States..................................... 1254 Allstate Ins. Co.; Equal Employment Opportunity Comm’n v..... 1232 Alonso v. United States..................................... 1240 Altoona v. Equal Employment Opportunity Comm’n............... 1204 Aluminum Co. of America v. Central Lincoln Peoples’ Util. Dist.. 380 Alyeska Pipeline Service; Lafferty v......................... 1205 V VI TABLE OF CASES REPORTED Page Alyeska Pipeline Service Co. v. Vessel Bay Ridge.............. 1247 American Academy of Orthopaedic Surgeons; Marrese v......... 1258 American Cast Iron Pipe Co. v. Pettway........................ 1247 American Cyanamid Co.; Coleman v.............................. 1215 American Iron & Steel Inst. v. Natural Resources Defense Council 837 American Medical Assn. v. Wilk................................ 1210 American Medical Assn.; Wilk v................................ 1210 American Motors Corp. v. Hanna................................ 1241 American Trucking Assns., Inc. v. Interstate Commerce Comm’n 1240 American Trucking Assns., Inc.; Interstate Commerce Comm’n v. 354 American Trucking Assns., Inc. v. New York State Tax Comm’n 1247 Amidon v. Weinberger.......................................... 1248 Anderson, In re............................................... 1237 Anderson v. Bessemer City..................................... 1250 Anderson v. Oklahoma.......................................... 1209 Antonelli v. Federal Bureau of Investigation.................. 1210 Antonelli v. Illinois......................................... 1229 Antonelli v. Schryver......................................... 1217 Antonelli v. United States.................................... 1246 Arizona; Girdler v............................................ 1244 Arizona; McCall v............................................. 1220 Arizona v. Rumsey.............................................. 203 Arkansas; Ingle v............................................. 1209 Arkansas Statewide Health Coord. Council; General Hospitals v. 1205 Arkansas Valley Publishing Co.; Lane v........................ 1252 Armco Inc. v. Hardesty......................................... 638 Arnold v. South Carolina...................................... 1265 Arsenal Savings Assn.; Templeton v............................ 1226 Arthur; Teachers v............................................ 1259 Ashland Oil, Inc. v. Good..................................... 1258 Ashley v. Grant............................................... 1208 Ashley; L. D. Butler, Inc. v................................... 1247 Ashley Trucking; L. D. Butler, Inc. v......................... 1247 Association. For labor union, see name of trade. Atalig v. Northern Mariana Islands............................ 1244 Atkins v. Parker.............................................. 1250 Attorney General of Mass.; Baird v............................ 1227 Attorney General of Minn. v. Northern States Power Co....... 1256 Attorney General of N. Y. v. Martin............................ 253 Attorney General of Tenn.; McDonald v.................... 1208,1257 Automobile Workers; Draper v.................................. 1215 Ayers v. Winter............................................... 1211 Bailey v. United States....................................... 1229 Baird v. Bellotti............................................. 1227 TABLE OF CASES REPORTED VII Page Bakery Workers; Sibley, Lindsay & Curr Co. v.................. 1259 Baldrige; Balelo v............................................ 1252 Baldwin v. Maggio........................................ 1220,1268 Baldwin County Welcome Center v. Brown........................ 1231 Balelo v. Baldrige............................................ 1252 Balkcom; McCorquodale v....................................... 1202 Ball; School Dist. of Grand Rapids v.......................... 1238 Bangor Publishing Co.; Caron v................................ 1241 Baranello & Sons v. Paterson.................................. 1240 Barber; Charter Consolidated, Ltd. v.......................... 1205 Barfield v. Harris............................................ 1210 Barham v. United States....................................... 1230 Bartels v. National Labor Relations Bd........................ 1245 Bartow County Bd. of Tax Assessors; First National Bank v. . 1214,1249 Batchelder; Mobil Oil Corp. v................................. 1258 Becker v. United States....................................... 1227 Beerbower v. Commissioner...................................... 1218 Beimert v. Burlington Northern Inc............................. 1216 Bell; Birmingham Linen Service v............................... 1204 Bell v. Eagleswood............................................. 1211 Bellotti; Baird v............................................. 1227 Benson; Texas v............................................... 1219 Bentley v. United States...................................... 1209 Bernal v. Fainter.............................................. 216 Berrong v. United States...................................... 1209 Berry v. Foltz................................................ 1245 Berryhill v. Francis.......................................... 1220 Berthelot v. United States.................................... 1249 Bessemer City; Anderson v...................................... 1250 Birmingham; Carter v.......................................... 1211 Birmingham Linen Service v. Bell.............................. 1204 Biscayne Federal S. & L. Assn. v. Federal Home Loan Bank Bd. 1215 Black Citizens for a Fair Media v. FCC........................ 1255 Blackledge v. Schwegmann....................................... 1206 Blake v. Goldman.............................................. 1245 Block, In re................................................... 1202 Block v. Community Nutrition Institute......................... 340 Block; Parker v............................................... 1250 Bloom Township High School Dist. No. 206; Kneeland v. ........ 1215 Blum v. Rosewell............................................... 1237 Board of Governors, FRS; Gustafson v........................... 1242 Board of Professional Responsibility of Tenn. Sup. Ct.; Farmer v. 1246 Board on Professional Responsibility of Del. Sup. Ct.; Kennedy v. 1205 Bonilla; Oakland Scavenger Co. v.............................. 1251 VIII TABLE OF CASES REPORTED Page Bonner v. Philadelphia International Records................ 1257 Bose Corp. v. Consumers Union of United States, Inc......... 1267 Boston v. United States..................................... 1268 Brackney; Miner v........................................... 1259 Bradford; Smith v......................................... 1230 Brady; Florida v............................................ 1201 Brandon; Brown v............................................ 1223 Brandon; Celeste v.......................................... 1223 Brandon; Flanagan v......................................... 1223 Brandon v. Holt............................................. 1204 Braswell v. Flintkote Mines, Ltd............................ 1231 Bray v. Michigan............................................ 1252 Broadway v. United States................................... 1246 Brookhaven; Regan v......................................... 1253 Brooklyn Psychosocial Rehabilitation Institute, Inc. v. NLRB.... 1226 Brotherhood. For labor union, see name of trade. Brown; Baldwin County Welcome Center v...................... 1231 Brown v. Brandon............................................ 1223 Brown v. Brown.............................................. 1242 Brown v. Evans.............................................. 1208 Brown v. Newsome............................................ 1207 Brown v. United States...................................... 1216 Browning v. United States................................... 1246 Brown & Root, Inc.; Lewis v................................. 1231 Brown & Root, Inc. v. Thornton.............................. 1231 Brunner v. National Steel Corp.............................. 1205 Bryner v. Security Pacific National Bank.................... 1241 Buchman v. United States.................................... 1228 Buckmore, In re............................................. 1203 Buffalo; Pickering v........................................ 1223 Bugher; Consolidated X-Ray Service Corp. v.................. 1207 Bumgardner v. United States................................. 1214 Burche v. Walters........................................... 1242 Burger v. Zant............................................ 1212 Burks v. United States...................................... 1218 Burlington Northern Inc.; Beimert v......................... 1216 Burlington Northern Inc.; LaScala v........................ 1205 Burlington Northern Inc.; Marshall v. .................... 1213 Burlington Northern R. Co. v. Lennen........................ 1230 Burris v. United States..................................... 1245 Bury v. Macaluso............................................ 1244 Butler, Inc. v. Ashley.................................... 1247 Butler, Inc. v. Phil Ashley Trucking........................ 1247 B & W Enterprises; Ohio v................................. 1224 TABLE OF CASES REPORTED IX Page Byrd; Dean Witter Reynolds Inc. v................................. 1240 Byrd; Heinrich Schmidt Reederei v................................. 1252 Calandra v. United States......................................... 1252 Caldor, Inc.; Thornton’s Estate v.................. 1203,1225,1239,1258 Calhoun v. Maryland............................................... 1268 California; Enright v............................................. 1201 California v. Howard.............................................. 1248 California; Koehler v............................................. 1229 California; Mothershed v.......................................... 1228 California; Pepper v.............................................. 1248 California; Reimer v.............................................. 1201 California; Sanford v. ........................................... 1228 California v. Trombetta............................................ 479 California ex rel. State Lands Comm’n; Summa Corp. v............ 1231 California State Dept, of Ed. v. Los Angeles Branch, NAACP ... 1209 Capital Cities Cable, Inc. v. Crisp................................ 691 Capobianco; Tilli v. ■.......................................... 1217 Cardenas v. Unifed States......................................... 1209 Carlock v. Illinois.............................................. 1208 Carlton; Shelton v................................................ 1206 Carlucci v. United States......................................... 1245 Carnivale v. Wisconsin..................................... 1217 Caron v. Bangor Publishing Co..................................... 1241 Carpenters Pension Trust for So. Cal.; G & R Roofing Co. v. .... 1259 Carpenters Pension Trust for So. Cal. v. Shelter Framing Corp. . 1257 Carroll; Smith v.................................................. 1244 Carroll v. United States.......................................... 1241 Carter v. Alabama............................................... 1228 Carter v. Birmingham.............................................. 1211 Casey v. Smith................................................... 1207 Castello v. United States......................................... 1254 CBS, Inc.; Lal v.................................................. 1213 Celeste v. Brandon................................................ 1223 Central Intelligence Agency; Sims v. ............................. 1240 Central Lincoln Peoples’ Util. Dist.; Aluminum Co. of America v. 380 Central States, S. E. & S. W. Areas Pens. Fund v. Central Transp. 1250 Central Transp.; Central States, S. E. & S. W. Areas Pens. Fund v. 1250 Chaney; Heckler v................................................. 1251 Chanya v. United States........................................... 1231 Charles F. v. New York............................................ 1216 Charter Consolidated, Ltd. v. Barber.............................. 1205 Chemical Mfrs. Assn. v. Natural Resources Defense Council, Inc. 1239 Cherry v. Marshall................................................ 1244 Chevron U. S. A., Inc. v. Hammond............................... 1248 X TABLE OF CASES REPORTED Page Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. 837 Chicago & North Western Transp. Co.; Hayfield Northern R. Co. v. 622 Chilcote v. United States..................................... 1218 Chung v. Immigration and Naturalization Service............... 1216 Cirillo v. Republic Steel Corp................................ 1213 Cities Service Oil Co. v. Matzen.............................. 1258 City. See name of city. Clark v. Florida.............................................. 1210 Clark; James v................................................ 1209 Clark; Naartex Consulting Corp. v............................ 1210 Clay; Raymark Industries, Inc. v.............................. 1253 Cleveland Bd. of Ed. v. Loudermill............................ 1204 Cleveland Bd. of Ed.; Loudermill u............................ 1204 Cockrell v. United States..................................... 1251 Cody v. United States......................................... 1226 Cohran v. State Bar of Ga..................................... 1223 Cole v. Georgia................................................. 39 Coleman v. American Cyanamid Co............................... 1215 Coleman v. Millsboro Township................................. 1231 Coleman v. Spears............................................. 1229 Coleman v. Sussex County...................................... 1231 Collins v. Western Electric Co................................ 1254 Colorado; Graham v............................................ 1216 Colorado v. New Mexico......................................... 310 Columbo v. Illinois........................................... 1208 Commercial Standard Ins. Co.; Ala. Surface Mining Reel. Comm’n v. 1242 Commissioner; Beerbower v..................................... 1218 Commissioner; Young v......................................... 1206 Commissioner of Internal Revenue. See Commissioner. Commonwealth. See name of Commonwealth. Community Health Services of Crawford County, Inc.; Heckler v. 51,1203 Community Nutrition Institute; Block v. ....................... 340 Condon v. Maine............................................... 1204 Cone v. Tennessee............................................. 1210 Consolidated Precast, Inc. v. Paterson....................... 1240 Consolidated Rail Corporation; Sullivan v..................... 1222 Consolidated X-Ray Service Corp. v. Bugher.................... 1207 Consumers Union of United States, Inc.; Bose Corp. v. ........ 1267 Cooke; Tillis v.............................................. 1244 Cooper v. Federal Reserve Bank of Richmond..................... 867 Cooper v. United States...................................... 1255 Co-operative Legislative Comm. v. Norfolk & Western R. Co. ... 1210 Copperweld Corp. v. Independence Tube Corp..................... 752 Corbin v. Alaska..........................................1213,1223 TABLE OF CASES REPORTED XI Page Cord v. Neuhoff.............................................. 1253 Com v. Zant.................................................. 1220 Corrections Commissioner. See name of commissioner. Corwin v. Lehman.............................................. 1227 County. See name of county. Court, Inc. v. United States.................................. 1211 Crawford v. Mintzes........................................... 1207 Crim v. Hunter................................................ 1268 Crimpers Promotions Inc.; Home Box Office, Inc. v............ 1252 Crisp; Capital Cities Cable, Inc. v........................... 691 Crockett v. Reagan............................................ 1251 Crossroads Hospital v. National Labor Relations Bd........... 1204 Crowley; Furniture Moving Drivers v.......................... 526 Crutchfield v. Fitzgerald.................................... 1229 Cunningham, In re............................................ 1202 Cunningham v. Donovan........................................ 1251 Curley v. Curley............................................. 1206 Cusmano v. United States..................................... 1252 Cuyler; Miller v............................................. 1208 Daggett; Karcher v.......................................... 1222 Dahl; Akin v................................................. 1231 Daniel v. Pettway............................................ 1243 Dann; United States v........................................ 1214 Darden v. Wainwright......................................... 1230 Dawn v. H. Rex Greene, M. D., Inc....................... 1249 Dawson; Franklin Stone Products, Inc. v...................... 1205 Dawson v. Maggio............................................. 1244 Day; Heckler v. ........;................................... 104 Dean Witter Reynolds Inc. v. Byrd............................ 1240 Decarlo v. United States..................................... 1206 DeFiore v. United States..................................... 1241 Delap v. Florida............................................. 1264 Delta Family-Care Disability and Survivorship Plan; Griffis v..... 1242 Department of Energy; Mobil Oil Corp. v. .................... 1255 D. E. Rogers Associates, Inc. v. Gardner-Denver Co........... 1242 Derringer v. United States................................... 1226 Detroit Plastic Molding Co. v. USM Corp...................... 1215 Director, OWCP; Todd Pacific Shipyards v. ................... 1243 Director of penal or correctional institution. See name or title of director. District Court. See U. S. District Court. Doamarel v. United States.................................... 1253 Dockside Terminal Services, Inc.; Port Houston Marine, Inc. v. .. 1253 Doe v. United States......................................... 1246 XII TABLE OF CASES REPORTED Page Dohm, In re.................................................. 1250 Dole; Safir v........................................... 1206,1268 Donnelly; Parma Bd. of Ed. v................................. 1204 Donovan; Cunningham v........................................ 1251 Donovan; McKissick Products Co. v............................ 1215 Draper v. Automobile Workers................................. 1215 Drew v. United States........................................ 1216 Dunagin v. Oxford............................................ 1259 Dunn; United States v........................................ 1201 Durant v. United States...................................... 1246 Durham v. Wyrick............................................. 1217 Dutton v. Oklahoma........................................... 1256 Eagleswood; Bell v........................................... 1211 Eastern Bancorporation v. Former Officers & Directors....... 1227 Eau Claire; Haihe v.......................................... 1240 Ebert v. Ritchey............................................. 1210 Eddy v. United States........................................ 1256 Eilerson v. Ohio............................................. 1242 Eklund v. United States...................................... 1249 Eleazar v. United States..................................... 1214 Elliott v. Group Hospital Service, Inc....................... 1215 Embers Supper Club, Inc.; Scripps-Howard Broadcasting Co. v. . 1226 Emery v. United States»v..................................... 1218 Employer-Sheet Metal Workers Local 544 Pens. Tr. Plan; Weiss v. 1267 Enright v. California........................................ 1201 Environmental Protection Agency v. NRDC...................... 1239 Equal Employment Opportunity Comm’n v. Allstate Ins. Co..... 1232 Equal Employment Opportunity Comm’n; Altoona v............... 1204 Equal Employment Opportunity Comm’n; Safeway Stores, Inc. v. 1204 Erkins v. Steelworkers....................................... 1243 Escondido Mut. Water Co. v. La Jolla Band of Mission Indians... 1267 Estate. See name of estate. Evans; Brown v............................................... 1208 Evans v. Mississippi........................,................ 1264 Evans v. United States......................................... 1255 F. v. New York................................................. 1216 Fainter; Bernal v. ........................................... 216 Fair; Sanders v................................................ 1254 Fant v. Pennsylvania........................................... 1244 Farley v. Saunders............................................. 1254 Farmer v. Board of Professional Responsibility of Tenn. Sup. Ct. 1246 Faust v. South Carolina State Highway Dept..................... 1226 Federal Bureau of Investigation; Antonelli v................. 1210 FCC; Black Citizens for a Fair Media v. ..................... 1255 TABLE OF CASES REPORTED XIII Page FERC; Papago Tribal Utility Authority v.......................... 1241 Federal Home Loan Bank Bd.; Biscayne Federal S. & L. Assn. v. 1215 Federal Reserve Bank of Richmond; Cooper v......................... 867 Feinberg, In re.................................................. 1238 Ferguson v. United States........................................ 1251 Fernandez v. Kiner............................................... 1224 Firefighters v. Stotts............................................. 561 First Nat. Bank of Atlanta v. Bartow Cty. Bd. of Tax Assessors 1214,1249 First National Corp, of Appleton; Ma v. ......................... 1208 Fitzgerald; Crutchfield v........................................ 1229 Flanagan v. Brandon.............................................. 1223 Flannery v. United States........................................ 1226 Flick v. United States........................................... 1247 Flintkote Mines, Ltd.; Braswell v................................ 1231 Florida v. Brady................................................. 1201 Florida; Clark v................................................. 1210 Florida; Delap v................................................. 1264 Florida; Sims v-................................................. 1246 Florida; Smith v................................................. 1220 Foley Construction Co. v. U. S. Army Corps of Engineers........ 1246 Foltz; Berry v................................................... 1245 Ford; Wainwright v............................................... 1220 Former Officers & Directors; Eastern Bancorporation v.......... 1227 Foster v. Lankford................................................ 1214 Foster v. Strickland.............................................. 1268 Fothergill v. United States....................................... 1253 Franchise Tax Bd. of Cal. v. U. S. Postal Service................. 512 Francis; Berryhill v.............................................. 1220 Francis v. Franklin............................................... 1225 Francis; Godfrey v................................................ 1231 Franklin; Francis v.........,................................... 1225 Franklin Mint Corp. v. Trans World Airlines, Inc.................. 1231 Franklin Mint Corp.; Trans World Airlines, Inc. v................. 1231 Franklin Stone Products, Inc. v. Dawson........................... 1205 Frey; Gormon v.................................................... 1228 Friedland, In re.................................................. 1258 Furniture Moving Drivers v. Crowley............................... 526 Gagliardo; Stein v................................................ 1242 Gallagher; Harrison v. .......................................... 1217 Gammal v. Hamrock................................................ 1215 Garcia v. Illinois................................................ 1260 Garcia v. Ingram.................................................. 1250 Garcia v. United States........................................... 1240 Garcia-Array v. United States..................................... 1255 xiv TABLE OF CASES REPORTED Page Gardner; Wolf v................................................... 1253 Gardner-Denver Co.; D. E. Rogers Associates, Inc. v............... 1242 Garment Workers v. National Labor Relations Bd.................... 1241 Garth v. United States.......................................... 1208 Gee v. Maryland................................................... 1244 General Hospitals of Humana v. Ark. Statewide Health Coord. Coun. 1205 Georgia; Cole v..................................................... 39 Georgia; Ledesma v................................................ 1241 Georgia; Merritt v. .............................................. 1241 Georgia; Olson v.................................................. 1209 Georgia; Waller v................................................... 39 Gerzof, In re..................................................... 1238 Gigante v. United States.......................................... 1206 Gilbert v. South Carolina......................................... 1220 Girdler v. Arizona................................................ 1244 Gleaton v. Aiken.................................................. 1220 Glover; Tower v. .................................................. 914 Godfrey v. Francis................................................ 1231 Goldade v. Wyoming............................................... 1253 Goldman; Blake v................................................ 1245 Gomez-Hermanos, Inc. v. Secretary of Treasury of Puerto Rico .. 1247 Gonzalez v. United States......................................... 1208 Good; Ashland Oil, Inc. v......................................... 1258 Gormon v. Frey.................................................... 1228 Gottfried v. United States........................................ 1252 Gouveia; United States v. ......................................... 180 Governor of Ill.; Perkins v....................................... 1257 Governor of Ohio v. Brandon....................................... 1223 Governor of Tenn. v. Jennings................................ 1238,1248 Graffagnino, In re................................................ 1203 Graham v. Colorado................................................ 1216 Gramza, In re..................................................... 1203 Grant; Ashley v.................................................. 1208 Gray; Herb’s Welding, Inc. v...................................... 1258 Gray & Co.; Oregon-Wash. Carpenters-Employers Pension Tr. v. 717 Gray & Co.; Pension Benefit Guaranty Corporation v................. 717 Greater Cleveland Regional Transit Auth.; North Olmstead v. ... 1205 Greek v. Superior Court of Yolo County........................... 1217 Green; McPeek v................................................... 1231 Greene, M. D., Inc.; Dawn v....................................... 1249 Greyhound Lines, Inc.; Aarsvold v................................. 1253 Grievance Committee of Fifth Jud. Dist. of N. Y.; Zimmerman v. 1227 Griffis v. Delta Family-Care Disability and Survivorship Plan .... 1242 Griffith v. Wainwright............................................ 1217 TABLE OF CASES REPORTED XV Page Group Health, Inc. v. Heckler................................ 1225 Group Hospital Service, Inc.; Elliott v. .................... 1215 G & R Roofing Co. v. Carpenters Pension Trust for So. Cal... 1259 Grumman Aerospace Co.; Pires v............................... 1228 Guardino, In re............................................ 1238 Gulf Oil Corp.; Palazzo v.................................... 1257 Gustafson v. Board of Governors, FRS......................... 1242 Guzman v. New Mexico......................................... 1256 Hall v. Illinois............................................. 1228 Hall v. United States........................................ 1251 Hallie v. Eau Claire......................................... 1240 Hammond; Chevron U. S. A., Inc. v............................ 1248 Hampshire v. United States................................... 1215 Hampton County Election Comm’n; NAACP v...................... 1250 Hamrock; Gammal v............................................ 1215 Hanberry; Kele v............................................. 1230 Handy v. Peck................................................ 1253 Hanna; American Motors Corp. v............................... 1241 Hanover Radio, Inc.; Ninety-Two Point Seven Broadcasting, Inc. v. 1243 Hanson v. Illinois........................................... 1247 Hanson v. United States............................. r...... 1230 Hardesty; Armco Inc. v......................................... 638 Harper & Row Publishers, Inc. v. Nation Enterprises.......... 1214 Harris; Barfield v........................................... 1210 Harris; Solomon v.......................................... 1211 Harris v. Texas.............................................. 1261 Harrison v. Gallagher........................................ 1217 Hastings v. United States.................................... 1254 Hawaii Housing Authority v. Midkiff............................ 229 Hayes v. Mignano............................................. 1243 Hayfield Northern R. Co. v. Chicago & North Western Transp. Co. 622 Heckler v. Chaney............................................ 1251 Heckler v. Community Health Services of Crawford County, Inc. 51,1203 Heckler v. Day.............................................. 104 Heckler; Group Health, Inc. v................................ 1225 Heckler; Holloway v........................................ 1217 Heckler; Levenson v. ........................................ 1243 Heckler v. Starnes.......................................... 1223 Heffron; Patterson v. ..................................... 1259 Heil Co. v. Meller........................................... 1206 Heinrich Schmidt Reederei v. Byrd............................ 1252 Henderson v. United States................................... 1218 Henry v. Wainwright.......................................... 1268 Hensley; United States v..................................... 1203 XVI TABLE OF CASES REPORTED Page Herb’s Welding, Inc. v. Gray..................................... 1258 Hernandez v. Spencer............................................ 1244 Herrington v. Met Coal & Coke Co................................. 1231 High v. Kemp..................................................... 1220 Hildebrand v. United States...................................... 1245 Hill v. United States....................................... 1230,1255 Hill v. Watts.................................................... 1224 Hines v. United States........................................... 1246 Hishon v. King & Spalding.......................................... 69 Hogan; Rhodes v................................................ 1227 Holder v. Illinois............................................... 1241 Holderman v. United States....................................... 1257 Holland v. Agriculture Federal Credit Union...................... 1229 Holland v. Office of Personnel Management........................ 1208 Holloway v. Heckler.............................................. 1217 Holt; Brandon v.................................................. 1204 Home Box Office, Inc. v. Crimpers Promotions Inc................. 1252 Home Savings & Loan Assn, of Lawton; Walters v................... 1223 Hood v. U. S. Parole Comm’n............................:......... 1243 Hoopa Valley Tribe v. Short...................................... 1256 Hoover v. Ronwin................................................. 1268 Housewright; Vipperman v. ....................................... 1217 Howard, In re.................................................... 1237 Howard; California v............................................. 1248 Howell v. United States.......................................... 1228 H. Rex Greene, M. D., Inc.; Dawn v............................... 1249 Hudson; Albrecht, Inc. v......................................... 1237 Humphrey v. Northern States Power Co............................. 1256 Hunter; Crim v................................................... 1268 Hunter v. Reardon Smith Lines, Ltd............................... 1205 Hutchinson v. United States...................................... 1230 Hydrokinetics, Inc. v. Alaska Mechanical, Inc.................... 1257 Hyman v. South Carolina.......................................... 1246 Hyun Joon Chung v. Immigration and Naturalization Service .... 1216 Illinois; Antonelli v............................................ 1229 Illinois; Carlock v.............................................. 1208 Illinois; Columbo v.............................................. 1208 Illinois; Garcia v. ............................................. 1260 Illinois; Hall v................................................. 1228 Illinois; Hanson v............................................... 1247 Illinois; Holder v............................................... 1241 Illinois; Lucas v.............................................. 1208 Illinois v. Rainge............................................... 1219 Illinois; Rizzio v.............................................. 1244 TABLE OF CASES REPORTED XVII Page Illinois v. Williams......................................1218,1268 Immigration and Naturalization Service; Hyun Joon Chung v. . . . . 1216 Immigration and Naturalization Service; Longstaff v........... 1219 Immigration and Naturalization Service; Marroquin-Manriguez v. 1259 Immigration and Naturalization Service; O’Rourke v............ 1256 Immigration and Naturalization Service v. Stevie............... 407 Immigration and Naturalization Service; Thorsteinsson v...... 1205 Independence Tube Corp.; Copperweld Corp. v.................... 752 Independent Electrical Co. v. Paterson........................ 1240 Ingle v. Arkansas............................................. 1209 Ingram; Garcia v.............................................. 1250 In re. See name of party. International. For labor union, see name of trade. International Telephone & Telegraph Corp.; White v............ 1220 ICC v. American Trucking Assns., Inc........................... 354 ICC; American Trucking Assns., Inc. v. ....................... 1240 ICC; Shippers National Freight Claim Council, Inc. v.......... 1251 Irizarry; Pershe v........................................... 1237 Israel; Wells v............................................... 1254 Israel; Worthing v. .......................................... 1228 Jacks; Perryton v............................................. 1268 Jackson v. United States................................. 1214,1218 James v. Clark................................................ 1209 James v. Kentucky............................................. 1268 J. Baranello & Sons v. Paterson............................... 1240 J. C. Penney Co.; Wambheim v................................. 1255 J. D. Court, Inc. v. United States............................ 1211 Jeffco American Baptist Residences, Inc.; Mayoral v. ......... 1224 Jennings; Alexander v.................................... 1238,1248 Jennings v. United States..................................... 1227 Jermosen v. Smith............................................. 1229 Jerry T. O’Brien, Inc.; Securities and Exchange Comm’n v..... 735 Johns; United States v........................................ 1250 Johnson; Mabry v........................................... 504 Johnson v. McKaskle....................,..................... 1220 Johnson v. Montana............................................ 1215 Johnson; Ohio v................................................ 493 Johnson; Washington Metropolitan Area Transit Authority v. .... 925 Johnston v. Oklahoma.......................................... 1228 Jones v. Mabry................................................ 1228 Jones v. Oklahoma............................................. 1217 Joon Chung v. Immigration and Naturalization Service.......... 1216 Joseph H. Munson Co.; Secretary of State of Md. v.............. 947 Jourdan v. United States...................................... 1246 XVIII TABLE OF CASES REPORTED Page Kageler v. Keohane........................................... 1230 Kahala Community Assn., Inc. v. Midkiff....................... 229 Kaiser Aluminum & Chemical Corp. v. Parson................... 1243 Karcher v. Daggett........................................... 1222 Kavanaugh v. Sperry Univac................................... 1218 Kele v. Hanberry............................................. 1230 Kelt v. Quezada.............................................. 1217 Kemp; High v. ............................................... 1220 Kemp; Stanley v.............................................. 1219 Kennedy v. Board on Professional Responsibility of Del. Sup. Ct. 1205 Kent City School Dist.; Rettig v........................ 1201,1257 Kentucky; James v.........................;.................. 1268 Keohane; Kageler v........................................... 1230 Keohane; Noll v.............................................. 1229 Kiner; Fernandez v........................................... 1224 King; Strickland v........................................... 1211 King v. United States........................................ 1245 King & Spalding; Hishon v...................................... 69 Kirby Forest Industries, Inc. v. United States.................. 1 Kneeland v. Bloom Township High School Dist. No. 206 ........ 1215 Knott v. United States....................................... 1217 Koehler v. California........................................ 1229 Koenig v. New Jersey......................................... 1254 Koppe v. United States....................................... 1218 Korn v. Rabbinical Council of California..................... 1242 Kovacs; Ohio v............................................... 1224 Kuntz v. Winters National Bank & Trust Co.................... 1257 Labor Union. See name of trade. Lacoste v. United States..................................... 1228 Lafferty v. Alyeska Pipeline Service......................... 1205 La Jolla Band of Mission Indians; Escondido Mut. Water Co. v. .. 1267 Lal v. CBS, Inc.............................................. 1213 Lamar Outdoor Advertising, Inc. v. Mississippi State Tax Comm’n 1259 Landis v. United States.................................... 1230 Landreth; Landreth Timber Co. v.............................. 1249 Landreth Timber Co. v. Landreth.............................. 1249 Lane v. Arkansas Valley Publishing Co........................ 1252 Languirand v. Pass Christian................................. 1215 Lankford; Foster v........................................... 1214 LaRoche v. United States..................................... 1245 LaScala v. Burlington Northern Inc........................... 1205 Lauchli v. United States..................................... 1202 Lawless v. Pierce............................................ 1241 Lawrence County v. Lead-Deadwood School Dist. No. 40-1... 1248,1258 TABLE OF CASES REPORTED XIX Page Laws v. Missouri.................................................. 1210 L. D. Butler, Inc. v. Ashley...................................... 1247 L. D. Butler, Inc. v. Phil Ashley Trucking........................ 1247 Lead-Deadwood School Dist. No. 40-1; Lawrence County v. .. 1248,1258 Ledesma v. Georgia................................................ 1241 Lee v. United States....................................... 1245,1253 Leech; McDonald v............................................ 1208,1257 Leggett v. Liddell................................................ 1225 Lehman; Corwin v.................................................. 1227 Lemire v. United States........................................... 1226 Lennen; Burlington Northern R. Co. v.............................. 1230 Lesko v. Pennsylvania............................................. 1256 Lester v. McGill.................................................. 1247 Letts; Rothschild v............................................... 1229 Levenson v. Heckler............................................... 1243 Levinson, In re................................................... 1202 Lewis v. Brown & Root, Inc........................................ 1231 Lewis Service Center, Inc. v. Mack Trucks, Inc.................... 1226 Liberatore v. United States....................................... 1252 Licavoli v. United States......................................... 1252 Liddell; Leggett v................................................ 1225 Liddell; Missouri v............................................... 1225 Liddell; North St. Louis Parents & Citizens for Quality Ed. v. ... 1225 Lindahl v. Office of Personnel Management......................... 1251 Lininger v. United States......................................... 1218 Lipscomb v. Michigan.............................................. 1245 Llaguno v. United States.......................................... 1216 Local. For labor union, see name of trade. Locke; United States v....................................... 1225,1248 Lomas v. Northwestern Lehigh School Dist.......................... 1205 London v. United States........................................... 1228 Lonewolf v. Lonewolf.............................................. 1223 Longstaff v. Immigration and Naturalization Service............... 1219 Lorenzetti; United States v........................................ 167 Los Angeles Branch, NAACP; California State Dept, of Ed....... 1209 Los Angeles County; Rees v........................................ 1205 Los Angeles County Dept, of Adoptions; Melchor v... -............. 1207 Loudermill v. Cleveland Bd. of Ed................................. 1204 Loudermill; Cleveland Bd. of Ed. u................................ 1204 Louisiana; Shea v................................................. 1238 Louisiana v. United States........................................ 1213 Louisiana Exposition; Novel v..................................... 1268 Lucas v. Illinois................................................. 1208 Lufkins; Solem v.................................................. 1219 XX TABLE OF CASES REPORTED Page Lyddan v. United States...................................... 1214 Lyons v. U. S. Air Force..................................... 1239 Ma v. First National Corp, of Appleton....................... 1208 Mabry v. Johnson.............................................. 504 Mabry; Jones v.............................................. 1228 Macaluso; Bury v. ........................................... 1244 MacDonald v. Mountanos........................................ 1269 MacDonald v. Superior Court of Cat, Marin County............. 1269 Mack Trucks, Inc.; Lewis Service Center, Inc. v.............. 1226 Maddox v. United States...................................... 1214 Maggio; Baldwin v....................................... 1220,1268 Maggio; Dawson v............................................. 1244 Maier, In re................................................. 1258 Maine; Condon v.............................................. 1204 Maine; Vainio v.............................................. 1204 Majcina v. Majcina........................................... 1207 Maldonado v. New York........................................ 1207 Manago v. Ohio............................................... 1207 Mann, In re.................................................. 1237 Marrese v. American Academy of Orthopaedic Surgeons......... 1258 Marroquin-Manriguez v. Immigration and Naturalization Service . 1259 Marsh; Saunders v............................................ 1227 Marshall v. Burlington Northern Inc.......................... 1213 Marshall; Cherry v........................................... 1244 Marshall; Roberts v.......................................... 1207 Martin; Abrams v.............................................. 253 Martin; Schall v............................................ 253 Martin v. United States...................................... 1249 Martin Steel Corp. v. Owatonna Elevator Co................... 1227 Martin Steel Corp. v. U. S. District Court................... 1227 Maryland; Calhoun v.......................................... 1268 Maryland; Gee v.............................................. 1244 Maryland; Mileski v..................................... 1207,1268 Maryland; Rusk v............................................. 1255 Maryland; Tichnell v......................................... 1268 Maryland; Turner v......................................... 1227 Mastrangelo v. United States................................. 1204 Matzen; Cities Service Oil Co. v............................. 1258 Mayoral v. Jeffco American Baptist Residences, Inc........... 1224 McAnlis v. United States..................................... 1227 McAuliffe; Struemph v........................................ 1216 McCall v. Arizona............................................ 1220 McCorquodale v. Balkcom...................................... 1202 McDonald v. Leech....................................... 1208,1257 TABLE OF CASES REPORTED XXI Page McDonald; Real Estate One v.................................. 1253 McDonald; Sandusky Real Estate, Inc. v....................... 1253 McGill; Lester v. ........................................... 1247 McKaskle; Johnson v.......................................... 1220 McKaskle; Munoz v............................................ 1229 McKaskle; Porter v........................................... 1268 McKiness v. United States................................... 1245 McKinney v. United States................................... 1255 McKissick Products Co. v. Donovan............................ 1215 McManus v. Southhampton...................................... 1206 McPeek v. Green.............................................. 1231 Melchor v. Los Angeles County Dept, of Adoptions.........:.. 1207 Meller; Heil Co. v........................................... 1206 Member, U. S. House of Representatives v. Reagan............. 1251 Memphis Fire Dept. v. Stotts................................... 561 Menominee Tribe v. United States............................ 1202 Merritt v. Georgia........................................... 1241 Met Coal & Coke Co.; Herrington v............................ 1231 Michigan; Bray v............................................. 1252 Michigan; Lipscomb v. ....................................... 1245 Michigan Canners & Freezers Assn. v. Agric. Mktg. & Barg. Bd. 461 Midkiff; Hawaii Housing Authority v............................ 229 Midkiff; Kahala Community Assn., Inc. v....................... 229 Midkiff; Portlock Community Assn. (Maunalua Beach) v........ 229 Mid-South Grizzlies v. National Football League.............. 1215 Mignano; Hayes v............................................. 1243 Mileski v. Maryland..................................... 1207,1268 Miller v. Cuyler............................................. 1208 Miller v. Port of Ilwaco..................................... 1243 Mills v. United States....................................... 1243 Millsboro Township; Coleman v................................ 1231 Miner v. Brackney............................................ 1259 Mintzes; Crawford v.......................................... 1207 Mintzes; Seibert v........................................... 1207 Mississippi; Evans v......................................... 1264 Mississippi; Tokman v........................................ 1256 Mississippi State Tax Comm’n; Lamar Outdoor Advertising, Inc. v. 1259 Missouri; Laws v............................................. 1210 Missouri v. Liddell.......................................... 1225 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc..... 1225 Mitsubishi Motors Corp.; Soler Chrysler-Plymouth, Inc. v.... 1225 M & K Farms, Inc. v. United States........................... 1253 Mobil Oil Corp. v. Batchelder................................ 1258 Mobil Oil Corp. v. Department of Energy...................... 1255 XXII TABLE OF CASES REPORTED Page Molasky v. Westfall.............................................. 1229 Moller v. United States.......................................... 1251 Monsanto Co.; Ruckelshaus v....................................... 986 Montana; Johnson v.............................................. 1215 Moore v. United States.......................................... 1204 Morgan Enterprises, Inc.; Moskowitz v............................ 1241 Morrow v. United States.......................................... 1230 Morton; United States v........................................... 822 Moskowitz v. Saul J. Morgan Enterprises, Inc..................... 1241 Moss v. United States....................................... 1207,1268 Mothershed v. California......................................... 1228 Mountanos; MacDonald v. ......................................... 1269 Munoz v. McKaskle................................................ 1229 Munson Co.; Secretary of State of Md. v........................... 947 Murphy Oil Corp. v. Naph-Sol Refining Co......................... 1255 Muzychka v. United States...................................... 1206 M. V. Resolute; Rothmann v....................................... 1242 Naartex Consulting Corp. v. Clark................................ 1210 Naff v. Oklahoma................................................. 1254 Naph-Sol Refining Co.; Murphy Oil Corp. v........................ 1255 NAACP v. Hampton County Election Comm’n.......................... 1250 National Football League; Mid-South Grizzlies v.................. 1215 NLRB; Bartels v.................................................. 1245 NLRB; Brooklyn Psychosocial Rehabilitation Institute, Inc. v. ... 1226 NLRB; Crossroads Hospital v...................................... 1204 NLRB; Garment Workers v.......................................... 1241 NLRB; Neuro Affiliates v......................................... 1204 NLRB; Sure-Tan, Inc. v............................................ 883 NLRB; U. S. Electrical Motors v.................................. 1216 National Motor Freight Traffic Assn., Inc. v. United States.. 1237 National Steel Corp.; Brunner v.................................. 1205 National Union Fire Ins. Co. of Pittsburgh; Robinson v....... 1268 Nation Enterprises; Harper & Row Publishers, Inc. v.............. 1214 Natural Resources Defense Council, Inc.; Am. Iron & Steel Inst. v. 837 Natural Resources Defense Council, Inc.; Chemical Mfrs. Assn. v. 1239 Natural Resources Defense Council, Inc.; Chevron U. S. A. Inc. v. 837 Natural Resources Defense Council, Inc.; EPA v................... 1239 Natural Resources Defense Council, Inc.; Ruckelshaus v....... 837 Natural Resources Defense Council, Inc.; Union Carbide Corp. v. 1219 Neuhoff; Cord v.................................................. 1253 Neuro Affiliates v. National Labor Relations Bd.................. 1204 New Jersey; Koenig v........................................... 1254 New Mexico; Colorado v........................................... 310 New Mexico; Guzman v........................................... 1256 TABLE OF CASES REPORTED XXIII Page New Mexico; Texas v........................................ 1238 Newsome; Brown v. ......................................... 1207 New York; Charles F. v..................................... 1216 New York; Maldonado v...................................... 1207 New York v. Quarles......................................... 649 New York; Salcedo v........................................ 1229 New York v. Uplinger........................................ 246 New York State Tax Comm’n; American Trucking Assns., Inc. v. 1247 Nezowy v. United States.................................... 1251 Ninety-Two Point Seven Broadcasting, Inc. v. Hanover Radio, Inc. 1243 Nix v. Williams............................................ 431 Noll v. Koehane............................................ 1229 Norfolk & Western R. Co.; Co-operative Legislative Comm. v.... 1210 Northern Mariana Islands; Atalig v......................... 1244 Northern States Power Co.; Humphrey v...................... 1256 North Olmstead v. Greater Cleveland Regional Transit Auth.. 1205 North Olmstead Police Dept.; Viccarone v................... 1244 North St. Louis Parents & Citizens for Quality Ed. v. Liddell.... 1225 Northwestern Lehigh School Dist.; Lomas v.................. 1205 Novel v. Louisiana Exposition.............................. 1268 Oakland Scavenger Co. v. Bonilla........................... 1251 Oberlin v. United States................................... 1217 O’Brien, Inc.; Securities and Exchange Comm’n v............. 735 Odom v. United States........................................ 1255 Office of Personnel Management; Holland v.................. 1208 Office of Personnel Management; Lindahl v.................... 1251 Ohio v. B & W Enterprises.................................... 1224 Ohio; Eilerson v............................................. 1242 Ohio v. Johnson............................................. 493 Ohio v. Kovacs............................................... 1224 Ohio; Manago v............................................... 1207 Ohio; Pembaur v.............................................. 1219 Ohio; Underwood v............................................ 1246 Oklahoma; Ake v....................................... 1239,1249 Oklahoma; Anderson v....................................... 1209 Oklahoma; Dutton v......................................... 1256 Oklahoma; Johnston v....................................... 1228 Oklahoma; Jones v....................;..................... 1217 Oklahoma; Naff v........................................... 1254 Oklahoma; Parks v.......................................... 1210 Oklahoma; Robison v........................................ 1246 Oklahoma; Stafford v....................................... 1212 Olson v. Georgia ......................................... 1209 Operating Engineers; Venkatesan v..................... 1218,1268 XXIV TABLE OF CASES REPORTED Page Orange County v. Wood........................................ 1210 Oregon v. United States...................................... 1252 Oregon-Wash. Carpenters-Employers Pens. Tr. Fund v. Gray & Co. 717 O’Rourke v. Immigration and Naturalization Service........... 1256 Ostrosky v. Alaska.......................................... 1201 Owatonna Elevator Co.; Martin Steel Corp. v.................. 1227 Oxford; Dunagin v. .......................................... 1259 Pablo-Lugones v. United States............................... 1255 Pacor, In re................................................. 1258 Palazzo v. Gulf Oil Corp..................................... 1257 Palmer v. Perko.............................................. 1228 Palmer v. United States...................................... 1246 Palmer v. Wainwright......................................... 1229 Palmetto State Savings & Loan Assn.; Vandross v.............. 1202 Papago Tribal Utility Authority v. FERC...................... 1241 Parker; Atkins v............................................. 1250 Parker v. Block.............................................. 1250 Parker v. Petrovsky.......................................... 1245 Parks v. Oklahoma............................................ 1210 Parma Bd. of Ed. v. Donnelly................................. 1204 Parson; Kaiser Aluminum & Chemical Corp. v................... 1243 Pass Christian; Languirand v................................. 1215 Paterson; Consolidated Precast, Inc. v....................... 1240 Paterson; Independent Electrical Co. v....................... 1240 Paterson; J. Baranello & Sons v.............................. 1240 Patterson v. Heffron....................................... 1259 Patton v. Yount.............................................. 1025 Payton v. United States...................................... 1208 Peck; Handy v................................................ 1253 Peed v. United States........................................ 1219 Peick v. Pension Benefit Guaranty Corporation............... 1259 Pekarski v. Abraham.......................................... 1242 Pembaur v. Ohio.............................................. 1219 Penney Co.; Wambheim v....................................... 1255 Pennsylvania; Fant v......................................... 1244 Pennsylvania; Lesko v...................................... 1256 Pennsylvania; Travaglia v.................................... 1256 Pension Benefit Guaranty Corporation; Peick v................ 1259 Pension Benefit Guaranty Corporation v. R. A. Gray & Co..... 717 Pepper v. California......................................... 1248 Pepper v. Superior Court of Cal., Los Angeles County......... 1248 Perkins v. Thompson.......................................... 1257 Perko; Palmer v. ............................................ 1228 Perry v. Superintendent, Mass. Correctional Inst, at Norfolk .... 1217 TABLE OF CASES REPORTED xxv Page Perryton v. Jacks............................................. 1268 Pershe v. Irizarry............................................ 1237 Petrovsky; Parker v........................................... 1245 Pettway; American Cast Iron Pipe Co. v........................ 1247 Pettway; Daniel v............................................. 1243 Philadelphia International Records; Bonner v.................. 1257 Phil Ashley Trucking; L. D. Butler, Inc. v.................... 1247 Phillips v. Alabama........................................... 1254 Pickering v. Buffalo.......................................... 1223 Pierce; Lawless v............................................. 1241 Pires v. Grumman Aerospace Co................................. 1228 Piteo v. United States........................................ 1206 Plath v. South Carolina....................................... 1265 Ponce de Leon v. United States................................ 1255 Porter v. McKaskle............................................ 1268 Port Houston Marine, Inc. v. Dockside Terminal Services, Inc.... 1253 Portlock Community Assn. (Maunalua Beach) v. Midkiff......... 229 Port of Ilwaco; Miller v...................................... 1243 Powell v. United States....................................... 1254 Powell; United States v.................................. 1203,1239 President of United States; Crockett v........................ 1251 Proud v. United States........................................ 1252 Puerto Rico; Alers v.......................................... 1230 Quarles; New York v............................................ 649 Quezada; Kelt v............................................... 1217 Quinault Indian Nation; Snow v. .............................. 1214 Rabbinical Council of California; Korn v...................... 1242 R. A. Gray & Co.; Ore.-Wash. Carpenters-Employers Pens. Fund v. 717 R. A. Gray & Co.; Pension Benefit Guaranty Corporation v..... 717 Railway Clerks v. Russell..................................... 1204 Rainge; Illinois v............................................ 1219 Ramos v. Scully............................................... 1244 Randazza v. United States..................................... 1218 Rangel v. United States...................................... 1230 Raymark Industries, Inc. v. Clay ............................. 1253 Reagan; Crockett v............................................ 1251 Real Estate One v. McDonald................................... 1253 Reardon Smith Lines, Ltd.; Hunter v........................... 1205 Redwine v. United States...................................... 1216 Rees v. Los Angeles County.................................... 1205 Regan v. Brookhaven........................................... 1253 Regan; Wayment v.............................................. 1256 Reilly v. United States....................................... 1245 Reimer v. California.......................................... 1201 XXVI TABLE OF CASES REPORTED Page Remson v. United States...................................... 1244 Republican Party of Wisconsin; Wisconsin Elections Bd. v.... 1232 Republic Industries, Inc. v. Teamsters Joint Council No. 83 . 1259 Republic Steel Corp.; Cirillo v............................ 1213 Rettig v. Kent City School Dist......................... 1201,1257 Rhinehart v. Seattle Times................................... 1230 Rhinehart; Seattle Times v..................................... 20 Rhinehart; Seattle Times Co. v................................. 20 Rhodes v. Hogan.............................................. 1227 Richardson v. Sheriff of Johnston County..................... 1254 Ritchey; Ebert v............................................. 1210 Rivera-Ramirez v. United States.............................. 1215 Rizzio v. Illinois........................................... 1244 Roberts v. Marshall.......................................... 1207 Robertson v. United States................................... 1213 Robinson v. National Union Fire Ins. Co. of Pittsburgh...... 1268 Robinson v. United States.................................... 1243 Robison v. Oklahoma.......................................... 1246 Rodriquez-Mora v. United States.............................. 1208 Rogers Associates, Inc. v. Gardner-Denver Co................. 1242 Ronwin; Hoover v............................................. 1268 Rose; Tate v................................................. 1249 Rosewell; Blum v............................................. 1237 Rothmann v. M.V. Resolute.................................... 1242 Rothschild v. Letts.......................................... 1229 Roundtree, In re............................................ 1224 Ruckelshaus v. Monsanto Co.................................... 986 Ruckelshaus v. Natural Resources Defense Council, Inc......... 837 Rumsey; Arizona v............................................. 203 Rusk v. Maryland............................................. 1255 Russell; Railway Clerks v.................................... 1204 Russell v. United States..................................... 1255 Rutledge v. United States.................................... 1230 Rylander; United States v.................................... 1209 S.A. Empresa De Viacao Aerea Rio Grandense; United States v. 797 Safeway Stores, Inc. v. Equal Employment Opportunity Comm’n 1204 Safir v. Dole........................................... 1206,1268 Salcedo v. New York.......................................... 1229 Sanders v. Fair.............................................. 1254 Sandusky Real Estate, Inc. v. McDonald....................... 1253 Sanford v. California........................................ 1228 Sanson v. United States...................................... 1264 Saul J. Morgan Enterprises, Inc.; Moskowitz v. .............. 1241 Saunders; Farley v........................................... 1254 TABLE OF CASES REPORTED XXVII Page Saunders v. Marsh............................................. 1227 Saunders v. United States..................................... 1209 Scarborough v. United States.................................. 1209 Schafer v. United States...................................... 1241 Schaflander v. United States.................................. 1216 Schall v. Martin................................................ 253 Schettino, In re.............................................. 1224 Schmidt v. Schmidt............................................ 1229 School Dist. of Grand Rapids v. Ball.......................... 1238 Schronce v. United States..................................... 1208 Schryver; Antonelli v......................................... 1217 Schwartz v. United States..................................... 1216 Schwegmann; Blackledge v...................................... 1206 Schwegmann v. Schwegmann...................................... 1206 Scoble v. United States....................................... 1254 Scott v. Siebel............................................... 1242 Scripps-Howard Broadcasting Co. v. Embers Supper Club, Inc... 1226 Scully; Ramos v............................................... 1244 Sea-Hire Service, S.A. v. Trinidad Corp....................... 1242 Seattle Times v. Rhinehart...................................... 20 Seattle Times; Rhinehart v.................................... 1230 Seattle Times Co. v. Rhinehart.................................. 20 Seay v. United States......................................... 1226 Secretary of Agriculture v. Community Nutrition Institute.... 340 Secretary of Agriculture; Parker v............................ 1250 Secretary of Army; Saunders v................................. 1227 Secretary of Commerce; Balelo v............................... 1252 Secretary of Defense; Amidon v................................ 1248 Secretary of HHS v. Chaney.................................... 1251 Secretary of HHS v. Community Health Servs. of Crawford Cty. 51,1203 Secretary of HHS v. Day........................................ 104 Secretary of HHS; Group Health, Inc. v........................ 1225 Secretary of HHS; Holloway v. ................................ 1217 Secretary of HHS; Levenson v.................................. 1243 Secretary of HHS v. Starnes................................... 1223 Secretary of Interior; James v................................ 1209 Secretary of Interior; Naartex Consulting Corp. v............. 1210 Secretary of Labor; Cunningham v.............................. 1251 Secretary of Labor; McKissick Products Co. v. ................ 1215 Secretary of Navy; Corwin v................................... 1227 Secretary of Revenue of Kan.; Burlington Northern R. Co. v..... 1230 Secretary of State of Md. v. Joseph H. Munson Co............... 947 Secretary of State of Ohio v. Brandon......................... 1223 Secretary of State of Tex.; Bernal v........................... 216 XXVIII TABLE OF CASES REPORTED Page Secretary of Transportation; Safir v...................... 1206,1268 Secretary of Treasury; Wayment v............................... 1256 Secretary of Treasury of Puerto Rico; Gomez-Hermanos, Inc. v... 1247 Securities and Exchange Comm’n v. Jerry T. O’Brien, Inc....... 735 Security Pacific National Bank; Bryner v....................... 1241 Segal v. United States........................................ 1216 Seibert v. Mintzes............................................. 1207 Seitu, In re................................................... 1225 Selman v. United States........................................ 1226 Sena v. Winans................................................. 1244 Senn Trucking Co. v. Wasson.................................... 1252 Sentry Title Co.; Ward v. ..................................... 1226 Shapiro, In re................................................. 1202 Sharpe; United States v........................................ 1250 Shea v. Louisiana.............................................. 1238 Sheehy, In re.................................................. 1224 Shelter Framing Corp.; Carpenters Pension Trust for So. Cal. v.. 1257 Shelton v. Carlton............................................ 1206 Sheriff of Johnston County; Richardson v....................... 1254 Shippers National Freight Claim Council, Inc. v. ICC........... 1251 Short; Hoopa Valley Tribe v.................................... 1256 Shriner v. Wainwright.......................................... 1257 Sibley, Lindsay & Curr Co. v. Bakery Workers................... 1259 Siebel; Scott v................................................ 1242 Sierra Club; Alabama Power Co. v............................... 1248 Sims v. Central Intelligence Agency............................ 1240 Sims v. Florida................................................ 1246 Slater v. United States........................................ 1254 Smith v. Bradford.............................................. 1230 Smith v. Carroll............................................... 1244 Smith; Casey v. ............................................... 1207 Smith v. Florida............................................... 1220 Smith; Jermosen v.............................................. 1229 Smith v. United States......................................... 1206 Snow v. Quinault Indian Nation................................. 1214 Solem v. Lufkins............................................... 1219 Soler Chrysler-Plymouth, Inc. v. Mitsubishi Motors Corp....... 1225 Soler Chrysler-Plymouth, Inc.; Mitsubishi Motors Corp. v...... 1225 Solomon v. Harris.............................................. 1211 Sommer, In re.................................................. 1225 South Carolina; Arnold v....................................... 1265 South Carolina; Gilbert v. .................................... 1220 South Carolina; Hyman v........................................ 1246 South Carolina; Plath v........................................ 1265 TABLE OF CASES REPORTED xxix Page South Carolina State Highway Dept.; Faust v................... 1226 South-Central Timber Development, Inc. v. Wunnicke.............. 82 Southern Motor Carriers Rate Conference, Inc. v. United States 1240 Southhampton; McManus v....................................... 1206 Speaker, N.J. Assembly v. Daggett............................. 1222 Spears; Coleman v............................................. 1229 Spencer; Hernandez v.......................................... 1244 Sperling v. United States..................................... 1243 Sperry Univac; Kavanaugh v.................................... 1218 Spitznagel, In re.............................................. 1237 Stafford v. Oklahoma.......................................... 1212 Stanley v. Kemp................................................ 1219 Starnes; Heckler v............................................. 1223 State. See name of State. State Bar of Ga.; Cohran v..................................... 1223 State Lands Comm’n; Summa Corp. v.............................. 1231 Steelworkers; Erkins v......................................... 1243 Steelworkers; Valenta v........................................ 1252 Stein v. Gagliardo............................................. 1242 Stevie; Immigration and Naturalization Service v............... 407 Stinson v. United States...................................... 1245 Stoner, In re................................................. 1202 Stotts; Firefighters v......................................... 561 Stotts; Memphis Fire Dept. v. ................................. 561 Strickland; Foster v.......................................... 1268 Strickland v. King............................................. 1211 Strickland v. Washington....................................... 1267 Strong v. United States........................................ 1216 Struemph v. McAuliffe.......................................... 1216 Sullivan v. Consolidated Rail Corporation...................... 1222 Summa Corp. v. California ex rel. State Lands Comm’n......... 1231 Superintendent, Mass. Correctional Inst, at Norfolk; Perry v..... 1217 Superintendent of penal or correctional institution. See also name or title of superintendent. Superior Court of Cal., Los Angeles County; Pepper v.......... 1248 Superior Court of Cal., Marin County; MacDonald v............. 1269 Superior Court of Yolo County; Greek v........................ 1217 Sure-Tan, Inc. v. National Labor Relations Bd.................. 883 Sussex County; Coleman v...................................... 1231 Suthoff v. Yazoo County Industrial Development Corp........... 1206 Sutton v. Weirton Steel Division of National Steel Corp....... 1205 Tate v. Rose.................................................. 1249 Tax Comm’r of W. Va.; Armco Inc. v............................. 638 Taylor v. United States............................. 1216,1239,1245 XXX TABLE OF CASES REPORTED Page Teachers v. Arthur............................................. 1259 Teamsters Jt. Council No. 83 of Va. Pension Fund; Republic Inds. v. 1259 Templeton v. Arsenal Savings Assn.............................. 1226 Tennessee; Cone v.............................................. 1210 Tennessee; Washington v........................................ 1208 Terrell v. United States....................................... 1218 Texas v. Benson................................................ 1219 Texas; Harris v................................................ 1261 Texas v. New Mexico............................................ 1238 Texas; Williams v.............................................. 1246 Thoma v. United States......................................... 1228 Thomas v. United States........................................ 1227 Thompson; Perkins v........................................... 1257 Thornton; Brown & Root, Inc. v................................ 1231 Thornton’s Estate v. Caldor, Inc................ 1203,1225,1239,1258 Thorsteinsson v. Immigration and Naturalization Service....... 1205 Threat v. United States ...................................... 1255 Three Affiliated Tribes of Ft. Berthold Res. v. Wold Engineering 138 Thurston; Air Line Pilots v. ........................ 1203,1224,1239 Thurston; Trans World Airlines, Inc. v............... 1203,1224,1239 Tichnell v. Maryland........................................... 1268 Tilli v. Capobianco............................................ 1217 Tillis v. Cooke................................................ 1244 Title Ins. Rating Bureau of Arizona, Inc. v. United States.... 1240 Todd Pacific Shipyards v. Director, OWCP....................... 1243 Tokman v. Mississippi.......................................... 1256 Tower v. Glover................................................. 914 Town. See name of town. Trans World Airlines, Inc. v. Franklin Mint Corp............... 1231 Trans World Airlines, Inc.; Franklin Mint Corp. v.............. 1231 Trans World Airlines, Inc. v. Thurston............... 1203,1224,1239 Travaglia v. Pennsylvania....................................... 1256 Trinidad Corp.; Sea-Hire Service, S.A. v........................ 1242 Trombetta; California v......................................... 479 Turner v. Maryland.............................................. 1227 Underwood v. Ohio............................................... 1246 Union. For labor union, see name of trade. Union Carbide Corp. v. Natural Resources Defense Council, Inc.. 1219 United. For labor union, see name of trade. United Scottish Ins. Co.; United States v....................... 797 United States. See name of other party. U. S. Air Force; Lyons v....................................... 1239 U. S. Army Corps of Engineers; Foley Construction Co. v....... 1246 U. S. District Court; Martin Steel Corp. v..................... 1227 U. S. Electrical Motors v. National Labor Relations Bd......... 1216 TABLE OF CASES REPORTED XXXI Page U. S. Parole Comm’n; Hood v................................. 1243 U. S. Parole Comm’n; Walker v............................... 1243 U. S. Postal Service; Franchise Tax Bd. of Cal. v............ 512 Uplinger; New York v......................................... 246 USM Corp.; Detroit Plastic Molding Co. v.................... 1215 Vainio v. Maine............................................. 1204 Valenta v. Steelworkers..................................... 1252 Vallez v. United States..................................... 1217 Vance v. Whirlpool Corp..................................... 1226 Vandross v. Palmetto State Savings & Loan Assn.............. 1202 Varig Airlines; United States v.............................. 797 Vaughn v. White............................................. 1207 Venkatesan v. Operating Engineers...................... 1218,1268 Vessel Bay Ridge; Alyeska Pipeline Service Co. v............ 1247 Viccarone v. North Olmstead Police Dept..................... 1244 Village. See name of village. Vipperman v. Housewright.................................... 1217 Wabbington v. Alabama....................................... 1254 Wainwright; Darden q........................................ 1230 Wainwright v. Ford.......................................... 1220 Wainwright; Griffith v...................................... 1217 Wainwright; Henry v......................................... 1268 Wainwright; Palmer v........................................ 1229 Wainwright; Shriner v....................................... 1257 Wainwright v. Witt......................................... 1258 Wainwright; Young v......................................... 1231 Walker v. U. S. Parole Comm’n............................... 1243 Waller v. Georgia............................................. 39 Walters; Burche v........................................... 1242 Walters v. Home Savings & Loan Assn, of Lawton.............. 1223 Wambheim v. J. C. Penney Co................................. 1255 Ward v. Sentry Title Co..................................... 1226 Warden. See name of warden. Washington; Strickland v.................................... 1267 Washington v. Tennessee......... .-......................... 1208 Washington Metropolitan Area Transit Authority v. Johnson.. 925 Wasson; Senn Trucking Co. v................................. 1252 Watkins v. United States.................................... 1253 Watts; Hill v. ............................................. 1224 Wayment v. Regan............................................ 1256 Wayte v. United States...................................... 1214 Weinberger; Amidon v........................................ 1248 Weirton Steel Division of National Steel Corp.; Sutton v... 1205 Weiss v. Employer-Sheet Metal Workers Local 544 Pens. Tr. Plan 1267 Wells v. Israel............................................. 1254 XXXII TABLE OF CASES REPORTED Page Wells v. United States......................................... 1207 Western Electric Co.; Collins v................................ 1254 Westfall; Molasky v............................................ 1229 Whirlpool Corp.; Vance v....................................... 1226 White v. International Telephone & Telegraph Corp.............. 1220 White; Vaughn v................................................ 1207 Wilk v. American Medical Assn.................................. 1210 Wilk; American Medical Assn. v................................. 1210 Williams v. Illinois........................................... 1268 Williams; Illinois v........................................... 1218 Williams; Nix v................................................ 431 Williams v. Texas.............................................. 1246 Williams v. United States.................................... 1245 Williams; Winslow v........................................... 1206 Willis v. Zant........*....................................... 1256 Willis; Zant v................................................ 1256 Wilson v. United States....................................... 1211 Winans; Sena v................................................ 1244 Winslow v. Williams.........................................• 1206 Winter; Ayers v. ............................................. 1211 Winters National Bank & Trust Co.; Kuntz v.................... 1257 Wisconsin; Carnivale v....................................... 1217 Wisconsin Elections Bd. v. Republican Party of Wisconsin..... 1232 Witt; Wainwright v............................................ 1258 Wold Engineering; Three Affiliated Tribes of Ft. Berthold Res. v. 138 Wolf v. Gardner............................................... 1253 Wood; Orange County v......................................... 1210 Woolard v. United States...................................... 1227 Worthing v. Israel............................................ 1228 Wunnicke; South-Central Timber Development, Inc. v.............. 82 Wyoming; Goldade v. .......................................... 1253 Wyrick; Durham v.............................................. 1217 Yates, In re.................................................. 1250 Yazoo County Industrial Development Corp.; Suthoff v......... 1206 Young; Acharya v.............................................. 1247 Young v. Commissioner......................................... 1206 Young v. Wainwright........................................... 1231 Yount; Patton v............................................... 1025 Zant; Burger v................................................ 1212 Zant; Corn v.................................................. 1220 Zant v. Willis............................................... 1256 Zant; Willis v................................................ 1256 Zimmerman v. Grievance Committee of Fifth Jud. Dist. of N. Y. 1227 Zullo v. United States........................................ 1230 TABLE OF CASES CITED Page Abbott Laboratories v. Gardner, 387 U.S. 136 350 Aberdeen & Rockfish R. Co. v. United States, 682 F. 2d 1092 358 Adamo Wrecking Co. v. United States, 434 U.S. 275 865 Addington v. Texas, 441 U.S. 418 303, 316, 424, 460 Agins v. Tiburon, 447 U.S. 255 14, 15 Alabama Power Co. v. Costle, 204 U.S. App. D. C. 51 841 Alamo Fence Co. of Houston v. United States, 240 F. 2d 179 786 Alaska v. Arctic Maid, 366 U.S. 199 643, 647 Alaska Pacific Fisheries v. United States, 248 U.S. 78 149 Albemarle Paper Co. v. Moody, 422 U.S. 405 76 Albemaz v. United States, 450 U.S. 333 499 Albert Hanson Lumber Co. v. United States, 261 U.S. 581 12 Albrecht v. Herald Co., 390 U.S. 145 764, 768, 785 Alessi v. Raybestos-Manhat-tan, Inc., 451 U.S. 504 720 Alexander v. Emerson, 489 F. 2d 285 923 Alexander v. Gardner-Denver Co., 415 U.S. 36 616 Alexander v. Louisiana, 405 U.S. 625 158 Allen v. McCurry, 449 U.S. 90 924 Allied Structural Steel Co. v. Spannaus, 438 U.S. 234 727, 733 Aluminum Co. of America v. Central Lincoln Peoples’ Util. Dist., 467 U.S. 380 844, 865 Page Amalgamated Clothing Workers Rank and File Committee v. Amalgamated Clothing Workers of America, Philadelphia Joint Bd., 473 F. 2d 1303 541 Ambach v. Norwick, 441 U.S. 68 220, 225 Amell v. United States, 384 U.S. 158 1017 American Book Co. v. Kansas ex rel. Nichols, 193 U.S. 49 599 American Communications Assn. v. Douds, 339 U.S. 382 31 American Discount Corp. v. Saratoga West, Inc., 81 Wash. 2d 34 29 American Indian Agricultural Credit Consortium, Inc. v. Fredericks, 551 F. Supp. 1020 156 American Paper Institute, Inc. v. American Electric Power Service Corp., 461 U.S. 402 389 American Telephone & Telegraph Co. v. United States, 299 U.S. 232 844 American Tobacco Co. v. Patterson, 456 U.S. 63 581, 587 American Tobacco Co. v. United States, 328 U.S. 781 771 American Trucking Assn., Inc. v. United States, 688 F. 2d 1337 359 American Trucking Assns., Inc. v. United States, 344 U.S. 298 365, 372 Anders v. California, 386 U.S. 738 453 Anderson v. Brand, 303 U.S. 95 1266 Anderson, Clayton & Co. v. United States, 562 F. 2d 972 836 XXXIII XXXIV TABLE OF CASES CITED Page Andresen v. Maryland, 427 U.S. 463 44 Andrus v. Allard, 444 U.S. 51 14, 15, 1007 Appalachian Coals, Inc. v. United States, 288 U.S. 344 762, 763, 774 Application of National Broadcasting Co., In re, 209 U.S. App. D. C. 354 1038 Arizona v. Rumsey, 470 U.S. 203 779 Arizona v. San Carlos Apache Tribe, 463 U.S. 545 149, 151 Arizona v. Washington, 434 U.S. 497 502 Arizona Governing Committee for Tax Deferred Annuity & Deferred Compensation Plans v. Norris, 463 U. S. 1073 77 Arizona Power Pooling Assn. v. Morton, 527 F. 2d 721 406 Armento v. Baughman, 290 N. W. 2d 11 439 Armstrong v. United States, 364 U.S. 40 14, 1003 Armstrong Cover Co. v. Whitfield, 418 F. Supp. 972 524 Aronoff v. Franchise Tax Bd., 60 Cal. 2d 177 522 ASARCO Inc. v. EPA, 188U.S. App. D. C. 77 841, 847 Ashe v. Swenson, 397 U.S. 436 497, 498, 500 Ashwander v. TVA, 297 U.S. 288 158, 251, 972 Associated General Contractors of California, Inc. v. Carpenters, 459 U.S. 519 349, 785 Associates Financial Services of America, Inc. v. Robinson, 582 F. 2d 1 519 Atchison, T. & S. F. R. Co. v. Wichita Bd. of Trade, 412 U.S. 800 60 Aubrey v. Gadbois, 50 Cal. App. 3d 470 268 Austin v. The Aidermen, 7 Wall. 694 976 Automobile Club v. Commissioner, 353 U.S. 180 62 Page Baker v. Carr, 369 U.S. 186 955 Baker v. Humphrey, 101 U.S. 494 921 Baker v. McCollan, 443 U.S. 137 273, 289 Baker v. Smith, 477 S. W. 2d 149 265, 268 Baldasar v. Illinois, 446 U.S. 222 295 Bank of the United States v. Deveaux, 5 Cranch 61 786 Bank of Virginia v. Tompkins, 434 F. Supp. 787 519 Barefoot v. Estelle, 463 U.S. 880 294 Barker v. Wingo, 407 U.S. 514 190, 297 Barlow v. Collins, 397 U.S. 159 346, 347, 349 Barnett v. Califano, 580 F. 2d 28 126 Barron v. United States, 5 F. 2d 799 786 Barrows v. Jackson, 346 U.S. 249 955 Bates v. State Bar of Arizona, 433 U.S. 350 957 Batterton v. Francis, 432 U.S. 416 119, 834, 844 Baxter v. Palmigiano, 425 U.S. 308 185 Beck v. Alabama, 447 U.S. 625 1261, 1267 Beck v. Washington, 369 U.S. 541 1034 Beckwith v. United States, 425 U.S. 341 654, 658, 663 Beecher v. Alabama, 389 U.S. 35 1266 Bell v. Wolfish, 441 U.S. 520 261, 264, 269, 271, 289, 291, 301 Bellotti v. Baird, 443 U.S. 622 266 Beneficial Finance Co. of New York, Inc. v. Dallas, 571F. 2d 125 519 Bennett v. Rundle, 419 F. 2d 599 46, 47, 49 Benton v. Maryland, 395 U.S. 784 208 TABLE OF CASES CITED xxxv Page Berenyi v. District Director, INS, 385 U.S. 630 200 Berman v. Parker, 348 U.S. 26 230-241, 243, 244, 1014 Berwind-White Coal Mining Co. v. Chicago & Erie R. Co., 235 U.S. 371 364 Bethlehem Steel Co. v. New York State Labor Relations Bd., 330 U.S. 767 708 Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731 896-898 Bishop v. Wood, 426 U.S. 341 815 Bitter v. United States, 389 U.S. 15 297 Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 446, 455 Black v. Cutter Laboratories, 351 U.S. 292 158, 842 Blackledge v. Allison, 431 U.S. 63 508 Blake v. Zant, 513 F. Supp. 772 1212 Blankenship v. Schweiker, 722 F. 2d 1282 115 Blankenship v. Secretary of Health and Human Services, 532 F. Supp. 739 115 Blankenship v. Secretary of HEW, 587 F. 2d 329 115, 126 Blankenship v. Secretary of HEW, No. C75-0186L(A) (WD Ky.) 115, 127 Block v. Hirsh, 256 U.S. 135 241, 242, 244, 1014 Blockburger v. United States, 284 U.S. 299 497, 499 Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313 697, 896 Blum v. Bacon, 457 U.S. 132 389, 844 Board of Regents v. Roth, 408 U.S. 564 288, 1001 Board of Trade v. Christie Grain & Stock Co., 198 U.S. 236 1004 Board of Trade v. ICC, 646 F. 2d 1187 360 Page Bogart, In re, 45 Mise. 2d 1075 257 Bond v. Floyd, 385 U.S. 116 572 Bordenkircher v. Hayes, 434 U.S. 357 508 Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485 1038 Boston Chapter, NAACP, Inc. v. Beecher, 504 F. 2d 1017 612 Boston & Marine Corp., In re, 596 F. 2d 2 633 Boston Stock Exchange v. State Tax Comm’n, 429 U.S. 318 642, 645, 647 Boykin v. Alabama, 395 U.S. 238 508 Brady v. Maryland, 373 U.S. 83 480, 484, 485, 488 Brady v. Roosevelt S.S. Co., 317 U.S. 575 518 Brady v. United States, 397 U.S. 742 508, 509 Bram v. United States, 168 U.S. 532 682 Brandt v. Hickel, 427 F. 2d 53 61 Branson v. Wirth, 17 Wall. 32 60 Breed v. Jones, 421 U.S. 519 263 Brewer v. Williams, 430 U.S. 387 188, 193, 196, 437, 450-455, 458, 672 Briscoe v. LaHue, 460 U.S. 325 920, 921 Broadrick v. Oklahoma, 413 U.S. 601 957, 958, 975, 978, 981 Brockington v. Rhodes, 396 U.S. 41 256 Brown v. Glines, 444 U.S. 348 32 Brown v. Herald Co., 464 U.S. 928 1214, 1239, 1249 Brown v. Mississippi, 297 U.S. 278 661, 682 Brown v. Ohio, 432 U.S. 161 498, 500, 501 Brown v. Texas, 443 U.S. 47 264 Brown v. United States, 113 U.S. 568 844 Brown Shoe Co. v. United States, 370 U.S. 294 768 Brunswick Corp. v. Pueblo Bowl-O-Mat, 429 U.S. 477 768 XXXVI TABLE OF CASES CITED Page Bryan v. Itasca County, 426 U.S. 373 149, 150 Buchanan v. Alexander, 4 How. 20 517 Buckley v. Valeo, 424 U.S. 1 32 Bull v. United States, 295 U.S. 247 523 Bullington v. Missouri, 451 U.S. 430 205, 207-215 Buncher v. NLRB, 405 F. 2d 787 901, 909 Bureau of Alcohol, Tobacco and Firearms v. Federal Labor Relations Authority, 464 U.S. 89 634 Burnet v. Chicago Portrait Co., 285 U.S. 1 843 Burnet v. Clark, 287 U.S. 410 786 Bushman v. New Holland Division, 83 Wash. 2d 429 29 Butz Engineering Corp. v. United States, 204 Ct. Cl. 561 519 Caban v. Mohammed, 441 U.S. 380 644 Cabell v. Chavez-Salido, 454 U.S. 432 220-224 Calhoon v. Harvey, 379 U.S. 134 539, 540, 548, 549, 558, 559 Calhoun v. United States, 557 F. 2d 401 826 Califano v. Boles, 443 U.S. 282 134 Califano v. Yamasaki, 442 U.S. 682 124, 135 California v. Beheler, 463 U.S. 1121 655, 663 California v. Byers, 402 U.S. 424 668 California v. Grace Brethren Church, 457 U.S. 393 515, 523, 524 California v. LaRue, 409 U.S. 109 712 California v. Stewart, 384 U.S. 436 641 California v. Taylor, 353 U.S. 553 697 California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 36, 897 Page California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U.S. 97 698, 712-716 Calley v. Callaway, 519 F. 2d 184 1038 Cannon v. University of Chicago, 441 U.S. 677 126, 747 Cantwell v. Connecticut, 310 U.S. 296 965 Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 845, 865 Carmichael v. Southern Coal & Coke Co., 301 U.S. 495 976 Carroll v. Princess Anne, 393 U.S. 175 590 Carson v. American Brands, Inc., 450 U.S. 79 588, 590, 611, 616 Cartwright Hardware Co. v. NLRB, 600 F. 2d 268 894 Caskey Baking Co. v. Virginia, 313 U.S. 117 643 Caswell v. Califano, 583 F. 2d 9 126 Central Hudson Gas & Electric Corp. v. Public Service Comm’n of N. Y., 447 U.S. 557 696, 966, 968 Chagnon v. Schweiker, 560 F. Supp. 71 126 Chambers v. Florida, 309 U.S. 227 661, 682 Chaplinsky v. New Hampshire, 315 U.S. 568 969 Chapman v. California, 386 U.S. 18 443 Chapman v. Rudd Paint & Varnish Co., 409 F. 2d 635 770 Chemehuevi Tribe of Indians v. FPC, 420 U.S. 395 828 Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157 75, 76, 828 Cheng v. Illinois, 438 F. Supp. 917 219 Cheng Kai Fu v. INS, 386 F. 2d 750 411, 415 Chevron Chemical Co. v. Cos-tie, 443 F. Supp. 1024 993 TABLE OF CASES CITED XXXVII Page Chevron Chemical Co. v. Cos-tie, 499 F. Supp. 732 1000 Chevron Oil Co. v. Huson, 404 U.S. 97 1234 Chicago Bd. of Trade v. United States, 246 U.S. 231 768 Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226 244 Chicago & N. W. Transportation Co. v. Kalo Brick & Tile Co., 450 U.S. 311 628 Chicago & N. W. Transportation Co. v. United States, 582 F. 2d 1043 628 Chicago & N. W. Transportation Co. v. United States, 678 F. 2d 665 631 Chisholm v. United States Postal Service, 665 F. 2d 482 613 Chrysler Corp. v. Brown, 441 U.S. 281 1008, 1022 Chrysler Corp. v. United States, 316 U.S. 556 611 Cincinnati v. Vester, 281 U.S. 439 241 Citizens for a Better Environment v. Schaumburg, 590 F. 2d 220 964 City. See name of city. City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 965, 966, 968 Cliff Food Stores, Inc. v. Kroger, Inc., 417 F. 2d 203 770 Coleman v. Alabama, 399 U.S. 1 194, 196 Colonial Bank v. Broussard, 403 F. Supp. 686 520 Colorado v. New Mexico, 459 U.S. 176 312-316, 319, 320, 323, 325, 327, 334, 335 Colorado v. Nunez, 465 U.S. 324 250 Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 236 Columbia Gas Transmission Corp. v. Rose, 459 U.S. 807 644 Columbia Metal Culvert Co. v. Kaiser Aluminum & Chemical Corp., 579 F. 2d 20 783 Page Columbia Steel Co. v. State, 30 Wash. 2d 658 642, 645 Commissioner v. Shapiro, 424 U.S. 614 522 Commissioner of Internal Revenue. See Commissioner. Commissioners of Customs and Excise v. Harz, 1 All. E. R. 177 673 Commonwealth. See also name of Commonwealth. Commonwealth v. Yount, 435 Pa. 276 1027, 1042 Commonwealth v. Yount, 455 Pa. 303 1028 Commonwealth Edison Co. v. Montana, 453 U.S. 609 648 Commonwealth ex rel. Sprowal v. Hendrick, 438 Pa. 435 268 Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 643, 648 Conley v. Gibson, 355 U.S. 41 73 Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458 507 Container Corp, of America v. Franchise Tax Bd., 463 U.S. 159 644, 648 Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36 98, 768, 796 Contractors Assn, of Eastern Pennsylvania v. Secretary of Labor, 442 F. 2d 159 619 Cooley v. Board of Wardens, 12 How. 299 87 Cooper v. United States, 594 F. 2d 12 507 Corbitt v. New Jersey, 439 U.S. 212 508 Coriolan v. INS, 559 F. 2d 993 419 Corn Products Refining Co. v. Eddy, 249 U.S. 427 1007 Cort v. Ash, 422 U.S. 66 747 Couch v. United States, 409 U.S. 322 742 Counselman v. Hitchcock, 142 U.S. 547 669 County. See name of county. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 35, 651 XXXVIII TABLE OF CASES CITED Page Craig v. Boren, 429 U.S. 190 712, 956 Craig S., In re, 57 App. Div. 2d 761 257, 264 Crosby v. Social Security Administration, 550 F. Supp. 1278 127, 129 Dahn v. Davis, 258 U.S. 421 176, 177 Dalehite v. United States, 346 U.S. 15 808, 810, 811, 813, 814, 816, 820 Danforth v. United States, 308 U.S. 271 4, 10-12, 15 Daniel v. INS, 528 F. 2d 1278 419 Data Processing Service v. Camp, 397 U.S. 150 346, 351 Davis v. Alaska, 415 U.S. 308 486 Davis v. North Carolina, 384 U.S. 737 654 Davis v. Portland Seed Co., 264 U.S. 403 364, 379 Day v. Mathews, 174 U.S. App. D. C. 231 618 Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421 1007 De Canas v. Bica, 424 U.S. 351 892, 893 DeFunis v. Odegaard, 416 U.S. 312 594 Delta Air Lines, Inc. v. CAB, 177 U.S. App. D. C. 100 362 Dennis v. Sparks, 449 U.S. 24 920 Department of Revenue v. James B. Beam Distilling Co., 377 U.S. 341 712 Department of Revenue of Washington v. Association of Washington Stevedoring Cos., 435 U.S. 734 643 Detroit v. Murray Corp., 355 U.S. 489 515 Detroit Window Cleaners Local 139 Ins. Fund v. Griffin, 345 F. Supp. 1343 520 De Veau v. Braisted, 363 U.S. 144 264 Dickey v. Florida, 398 U.S. 30 194 Dillingham v. United States, 423 U.S. 64 190 Page DiNicola v. George Hyman Construction Co., 407 A. 2d 670 934 Director, OWCP v. Rasmussen, 440 U.S. 29 934 Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373 98, 1002 Drs. Macht, Podore & Associates, Inc. v. Girton, 392 F. Supp. 66 520 Dombrowski v. Dowling, 459 F. 2d 190 775 Dombrowski v. Pfister, 380 U.S. 479 957 Donahey v. Edmondson, 89 Ohio St. 93 497 Donaldson v. United States, 400 U.S. 517 743, 748, 751 Donigan v. Finn, 95 Mich. App. 28 922 Donovan v. Lone Steer, Inc., 464 U.S. 408 743 Doran v. Salem Inn, Inc., 422 U.S. 922 238, 589, 601, 604 Dorchy v. Kansas, 264 U.S. 286 248 Doremus v. Board of Ed., 342 U.S. 429 954 Douglas v. Wainwright, 714 F. 2d 1^32 46, 49 Driscoll v.. International Union of Operating Engineers, 484 F. 2d 682 535 Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59 1020 Dunaway v. New York, 442 U.S. 200 658 Dunlop v. Bachowski, 421 U.S. 560 350, 539, 549, 559 Duplex Printing Press Co. v. Deering, 254 U.S. 443 786 Du Pont de Nemours Power Co. v. Masland, 244 U.S. 100 1004 Eastern Air Lines, Inc. v. Union Trust Co., 95 U.S. App. D. C. 189 811, 812 Eastern Microwave, Inc. v. Doubleday Sports, Inc., 691 F. 2d 125 711 TABLE OF CASES CITED xxxix Page Eddings v. Oklahoma, 455 U.S. 104 266 Edwards v. Arizona, 451 U.S. 477 654, 663 Edwards v. Bechtel Associates Professional Corp., 466 A. 2d 436 940 Edwards’ Lessee v. Darby, 12 Wheat. 206 844 Egan v. United States, 137 F. 2d 369 786 E. I. du Pont de Nemours Power Co. v. Masland, 244 U.S. 100 1004 Eisenstadt v. Baird, 405 U.S. 438 957 Elkins v. United States, 364 U.S. 206 456 Energy Resources Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400 732 Engle v. Isaac, 456 U.S. 107 1222 Enmund v. Florida, 458 U.S. 782 1260, 1261 EEOC, In re, 709 F. 2d 392 748 EEOC v. American Tel. & Tel. Co., 556 F. 2d 167 613,618 Erznoznik v. City of Jackson- ville, 422 U.S. 205 965, 968 Escobedo v. Illinois, 378 U.S. 478 188, 193-195, 197, 199, 683 Estelle v. Smith, 451 U.S. 454 188, 196, 663, 1267 Estes v. Texas, 381 U.S. 532 46 Estin v. Estin, 334 U.S. 541 828 Euclid v. Ambler, 272 U.S. 365 15 Examining Board v. Flores de Otero, 426 U.S. 572 220, 237 Ex parte. See name of party. Exxon Corp. v. Governor of Maryland, 437 U.S. 117 242 Fair Assessment in Real Estate Assn., Inc. v. McNary, 454 U.S. 100 239, 524 Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112 241 Fare v. Michael C., 442 U.S. 707 658, 664, 679 Farmers Union v. WDAY, Inc., 360 U.S. 525 706 Page FCC v. Midwest Video Corp., 440 U.S. 689 700 FCC v. Schreiber, 381 U.S. 279 745 Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380 60, 61, 63, 67 FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27 403, 843 FHA v. Burr, 309 U.S. 242 517-521, 524 Federal Land Bank v. Priddy, 295 U.S. 229 521, 525 FMC v. Seatrain Lines, Inc., 411 U.S. 726 843 FTC v. Colgate-Palmolive Co., 380 U.S. 374 843 Felix v. Patrick, 145 U.S. 317 148 Fellows v. Blacksmith, 19 How. 366 148 Ferguson v. Moore-McCormack Lines, 352 U.S. 521 248 Ferri v. Ackerman, 444 U.S. 193 919, 920 Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203 899 Fidelity Federal Savings & Loan Assn. v. De la Cuesta, 458 U.S. 141 469, 699, 709 Finnegan v. Leu, 456 U.S. 431 536, 537, 553, 556 Fiore v. Royal Painting Co., 398 So. 2d 863 933 Firefighters Institute v. City of St. Louis, 616 F. 2d 350 613 First National Bank of Boston v. Bellotti, 435 U.S. 765 966,968 Fisher v. District Court, 424 U.S. 382 148, 161, 164 Fisher v. United States, 425 U.S. 391 653, 666, 687, 742 Flemming v. Nestor, 363 U.S. 603 269 Fleurinor v. INS, 585 F. 2d 129 419, 420 Florida v. Meyers, 466 U.S. 380 1053 Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 469, 470, 478, 632, 699 XL TABLE OF CASES CITED Page Foley v. Connelie, 435 U.S. 291 220, 225 Fong Foo v. United States, 369 U.S. 141 786 Ford v. Strickland, 734 F. 2d 538 1221 Ford Motor Co. v. EEOC, 458 U.S. 219 579, 583, 588 Ford Motor Co. v. NLRB, 441 U.S. 488 891 Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390 709 Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1 96, 97 Franks v. Bowman Transportation Co., 424 U.S. 747 76, 570, 572, 579, 582, 586, 612, 614, 875 Freedman v. Maryland, 380 U.S. 51 965 Freeman v. Hewit, 329 U.S. 249 642, 645 Fuentes v. Shevin, 407 U.S. 67 304, 827 Fulenwider v. Firefighters Assn. Local Union 1784, 649 S. W. 2d 268 573, 600 Fumco Construction Corp. v. Waters, 438 U.S. 567 876, 878 Gannett Co. v. DePasquale, 443 U.S. 368 33, 45-47 Gault, In re, 387 U.S. 1 259, 263-265, 282, 288, 291 Gena v. INS, 424 F. 2d 227 419 General Building Contractors Assn. v. Pennsylvania, 458 U.S. 375 583 General Electric Co. v. Gilbert, 429 U.S. 125 403 General Electric Credit Corp. v. Smith, 565 F. 2d 291 519 General Motors Corp. v. Washington, 377 U.S. 436 642, 647 General Telephone Co. of Southwest v. Falcon, 457 U.S. 147 876, 877 George R. Whitten, Jr., Inc. v. Paddock Pool Builders, Inc., 508 F. 2d 547 783 Page Gerstein v. Pugh, 420 U.S. 103 196, 197, 256, 262, 264, 274-277, 288 Gibbons v. Ogden, 9 Wheat. 1 627 Gibbons v. United States, 8 Wall. 269 64 Gideon v. Wainwright, 372 U.S. 335 1266 Giglio v. United States, 405 U.S. 150 61, 484, 485 Gilbert v. California, 388 U.S. 263 456, 666 Gilliard v. Mississippi, 464 U.S. 867 1262 Globe Newspaper Co. v. Superior Court for Norfolk County, 457 U.S. 596 44, 45, 47 Glover v. Dolan, No. 78-8077 (CA9) 917 Glover v. Dolan, No. 77-276 (Dist. Ct. Ore.) 916, 917 G. M. Leasing Corp. v. United States, 429 U.S. 338 523 Godrey v. Georgia, 446 U.S. 420 1261, 1267 Goldberg v. United States, 425 U.S. 94 50 Goodman’s Furniture Co. v. United States Postal Service, 561 F. 2d 462 519 Goumeau v. Smith, 207 N. W. 2d 256 145, 154, 156 Government of Virgin Islands v. Gereau, 502 F. 2d 914 440 Grace & Co. v. Rubber Workers, 461 U.S. 757 588, 597, 600, 605, 606 Grace Lutheran Church v. North Dakota Employment Security Bureau, 294 N. W. 2d 767 155 Graham v. Ramani, 383 So. 2d 634 219 Graham v. Richardson, 403 U.S. 365 219 Graver Mfg. Co. v. Linde Co., 336 U.S. 271 200 Gray v. Sanders, 372 U.S. 368 586 Great Lakes Co. v. Huffman, 319 U.S. 293 524 TABLE OF CASES CITED XLI Page Green v. United States, 355 U.S. 184 499, 502 Greene v. Franchise Tax Bd., 27 Cal. App. 3d 38 523 Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 278, 279, 291, 294 Greenville Publishing Co. v. Daily Reflector, Inc., 496 F. 2d 391 769, 770 Gregg v. Georgia, 428 U.S. 153 1211, 1212, 1219, 1220, 1246, 1256, 1264 Gregory v. Chicago, 394 U.S. Ill 292 Griffin v. Griffin, 327 U.S. 220 828, 834 Griffiths, In re, 413 U.S. 717 220, 226 Guerro v. Mulhearn, 498 F. 2d 1249 923 Gulf Oil Co. v. Bernard, 452 U.S. 89 33 Gumbel v. Pitkin, 124 U.S. 131 35 Hager v. Reclamation Dist. No. 108, 111 U.S. 701 523 Hague v. CIO, 307 U.S. 496 965 Halkin, In re, 194 U.S. App. D. C. 257 25, 29, 32 Hall v. Beals, 396 U.S. 45 256 Hall v. Cole, 412 U.S. 1 538, 553, 554 Hall v. Hansen, 303 N. W. 2d 349 145, 156 Halliburton Oil Well Co. v. Reily, 373 U.S. 64 645, 647 Hannah v. Larche, 363 U.S. 420 742 Hanson Lumber Co. v. United States, 261 U.S. 581 12 Harbison v. McMurray, 138 Tex. 192 225 Harlow v. Fitzgerald, 457 U.S. 800 299 Harman v. Forssenius, 380U.S. 528 236 Harrington v. National Outdoor Advertising Co., 355 Mo. 524 1001, 1002 Harris v. Balk, 198 U.S. 215 832 Page Harris v. New York, 401 U.S. 222 663, 683 Harryman v. Estelle, 616 F. 2d 870 679 Hart v. Andrews, 103 Ohio St. 218 497 Hart v. United States, 95 U.S. 316 62, 64 Hawaii Housing Authority v. Midkiff, 467 U.S. 229 1014, 1015 Haynes v. Washington, 373 U.S. 503 661, 682 H & B Equipment Co. v. International Harvester Co., 577 F. 2d 239 770, 783 Head v. New Mexico Bd. of Examiners in Optometry, 374 U.S. 424 705 Hecht Co. v. Bowles, 321 U.S. 321 621 Heckler v. Blankenship, 465 U.S. 1301 115 Heckler v. Campbell, 461 U.S. 458 119, 129 Heckler v. Edwards, 465 U.S. 870 1234-1236 Heikkila v. Barber, 345 U.S. 229 349 Henderson v. Morgan, 426 U.S. 637 508 Henry v. INS, 552 F. 2d 130 419 Hensley v. Municipal Court, 411 U.S. 345 507 Herbert v. Lando, 441 U.S. 153 34, 35 Herd & Co. v. Kra will Machinery Corp., 359 U.S. 297 946 Herring v. New York, 422 U.S. 853 453 Hewitt v. Helms, 459 U.S. 460 198 Hicks v. Miranda, 422 U.S. 332 238 Hines v. Davidowitz, 312 U.S. 52 469, 478, 634, 699, 706 Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264 1005 Hodgson v. Lodge 851, International Assn, of Machinists & Aerospace Workers, AFL- CIO, 454 F. 2d 545 558 XLII TABLE OF CASES CITED Page Hodgson v. Steelworkers, 403 U.S. 333 549 Hood & Sons, Inc. v. Du Mond, 336 U.S. 525 87 Hoopes v. Burnett, 26 Miss. 428 921 Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324 712-714 H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525 87 Hughes v. Alexandria Scrap Corp., 426 U.S. 794 93, 94, 101, 103 Hughes v. Oklahoma, 441 U.S. 322 87, 92 Hurley v. Kincaid, 285 U.S. 95 1016 Hyde v. United States, 225 U.S. 347 786 Illinois v. Gates, 462 U.S. 213 665, 689 Illinois Brick Co. v. Illinois, 431 U.S. 720 784 Imbler v. Pachtman, 424 U.S. 409 920, 922 INS v. Chadha, 462 U.S. 919 1234, 1236 INS v. Delgado, 466 U.S. 210 300 INS v. Hibi, 414 U.S. 5 60, 64, 67 INS v. Jong Ha Wang, 450 U.S. 139 844 INS v. Miranda, 459 U.S. 14 60 Indiana ex rel. Anderson v. Brand, 303 U.S. 95 1266 Indian Towing Co. v. United States, 350 U.S. 61 811-813, 815 Inglis & Sons Baking Co. v. ITT Continental Baking Co., 668 F. 2d 1014 783 Ingraham v. Wright, 430 U.S. 651 288, 292 In re. See name of party or proceeding. Insurance Co. of North America v. United States Postal Service, 675 F. 2d 756 519 Insurance Corp, of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694 828 Page International Products Corp. v. Koons, 325 F. 2d 403 25, 29, 35 Investment Company Institute v. Camp, 401 U.S. 617 844 lowa-Des Moines National Bank v. United States, 414 F. Supp. 1393 520 Irvin v. Dowd, 366 U.S. 717 1029-1037, 1052, 1054 Jackson v. Denno, 378 U.S. 368 50 Jackson v. Virginia, 443 U.S. 307 490 Jago v. Van Curen, 454 U.S. 14 507 Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434 100 Jeems Bayou Fishing & Hunt- ing Club v. United States, 260 U.S. 561 63 Jeffers v. United States, 432 U.S. 137 502 Jefferson County Pharmaceuti- cal Assn., Inc. v. Abbott Lab- oratories, 460 U.S. 150 102 Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2 789 J. E. Riley Investment Co. v. Commissioner, 311 U.S. 55 842 Jewell Ridge Coal Corp. v. Mine Workers, 325 U.S. 161 862 Jii v. Rhodes, 577 F. Supp. 1128 219, 225 Johnson v. New Jersey, 384 U.S. 719 188, 194, 670 Johnson v. State, 252 Ark. 1113 505 Johnson v. United States, 333 U.S. 10 653 Johnson v. Zerbst, 304 U.S. 458 189 Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731 896-898 Johnston v. Baker, 445 F. 2d 424 770 Jones v. Cunningham, 371 U.S. 236 507 Jones v. Rath Packing Co., 430 U.S. 519 699 Jones Store Co. v. Hammons, 424 F. Supp. 494 524 TABLE OF CASES CITED XLIII Page Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., 416 F. 2d 71 770, 773 J. P. Stevens & Co. v. NLRB, 461 U.S. 490 894 J. Truett Payne Co. v. Chrysler Motors Corp., 451 U.S. 557 910 Juidice v. Vail, 430 U.S. 327 923 Jurek v. Texas, 428 U.S. 262 278, 279, 295 Justices of Boston Municipal Court v. Lydon, 466 U.S. 294 507 Kaiser Aetna v. United States, 444 U.S. 164 60, 1005, 1011 Kanarek v. Davidson, 85 Cal. App. 3d 341 522 Kashani v. INS, 547 F. 2d 376 420 Kastigar v. United States, 406 U.S. 441 442, 443, 669, 672 Keeton v. Hustler Magazine, Inc., 465 U.S. 770 829 Keifer & Keifer v. Reconstruction Finance Corp., 306 U.S. 381 518, 521, 524 Kennedy v. Mendoza-Martinez, 372 U.S. 144 264, 269, 300 Kennedy Electric Co. v. United States Postal Service, 508 F. 2d 954 519 Kennerly v. District Court of Montana, 400 U.S. 423 151, 164 Kent v. United States, 383 U.S. 541 275, 277, 288, 307 Kercheval v. United States, 274 U.S. 220 508 Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 1002 Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc., 340 U.S. 211 763- 766, 773, 781, 782, 791 Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc., 182 F. 2d 228 764 Killian v. United States, 368 U.S. 231 487, 488 Killough v. United States, 114 U.S. App. D. C. 305 448, 455 King v. Laborers Int’l Union, Local No. 818, 443 F. 2d 273 618 Page King v. Warickshall, 1 Leach 262 673 Kirby v. Illinois, 406 U.S. 682 185, 187-189, 193, 196 Kohl v. United States, 91 U.S. 367 9 Kolender v. Lawson, 461 U.S. 352 965 Kovac v. INS, 407 F. 2d 102 419 Kunda v. Muhlenberg College, 621 F. 2d 532 80 Kupau v. Yamamoto, 622 F. 2d 449 535 Langnes v. Green, 282 U.S. 531 842 Lanzetta v. New Jersey, 306 U.S. 451 965 Larkin v. Grendel’s Den, Inc., 459 U.S. 116 712 Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 1016 Las Vegas Sun, Inc. v. Summa Corp., 610 F. 2d 614 772, 783 Lauderdale v. State, 548 P. 2d 376 491 Lawhorn v. Lawhorn, 351 F. Supp. 1399 520 Lee v. Munroe, 7 Cranch 366 64 Lefkowitz v. Turley, 414 U.S. 70 670 Lego v. Twomey, 404 U.S. 477 444 Lehman v. Lycoming County Children’s Services, 458 U.S. 502 265 Leland v. Oregon, 343 U.S. 790 268, 274 Lena v. INS, 379 F. 2d 536 415, 420 Leng May Ma v. Barber, 357 U.S. 185 415 Leroy v. Great Western United Corp., 443 U.S. 173 157 LeTulle v. Scofield, 308 U.S. 415 842 Levine v. United States, 362 U.S. 610 49 Lewis v. BT Investment Managers, Inc., 447 U.S. 27 87 XLIV TABLE OF CASES CITED Page Lieberman v. Gant, 630 F. 2d 60 80 Lincoln National Bank & Trust Co. v. Marotta, 442 F. Supp. 49 519 Linda R. S. v. Richard D., 410 U.S. 614 897, 955 Local 189, United Papermakers and Paperworkers v. United States, 416 F. 2d 980 579 Lodi v. Hine, 107 Wis. 2d 118 491 Lorillard v. Pons, 434 U.S. 575 126 Los Angeles v. Lyons, 461 U.S. 95 300, 590 Los Angeles County v. Davis, 440 U.S. 625 570 Lott v. United States, 367 U.S. 421 786 Louisville, C. & C. R. Co. v. Letson, 2 How. 497 786 Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 1003 Lovell v. Griffin, 303 U.S. 444 964, 965 L. O. W. v. District Court of Arapahoe, 623 P. 2d 1253 266, 268 Lucido v. Cravath, Swaine & Moore, 425 F. Supp. 123 77 Luckett v. Orange Julep Co., 271 Mo. 289 1001 Ludecke v. Watkins, 335 U.S. 160 349 Lugar v. Edmondson Oil Co., 457 U.S. 922 827 Lutz v. United States Postal Service, 538 F. Supp. 1129 519 Luxton v. North River Bridge Co., 153 U.S. 525 522 Lynch v. United States, 292 U.S. 571 1003 Lyons v. Oklahoma, 322 U.S. 596 661 Madisonville Traction Co. v. St. Bernard Mining Co., 196 U.S. 239 241 Malloy v. Hogan, 378 U.S. 1 682 Maness v. Meyers, 419 U.S. 449 669 Page Mapp v. Ohio, 367 U.S. 643 456 Marbury v. Madison, 1 Cranch 137 976 Marshall v. Lonberger, 459 U.S. 422 1037, 1038, 1051 Marshall v. State, 262 Ark. 726 507 Martarella v. Kelley, 359 F. Supp. 478 290 Martin v. Merola, 532 F. 2d 191 923 Martineau v. INS, 556 F. 2d 306 419 Maryland v. Louisiana, 451 U.S. 725 642, 643, 647 Massachusetts v. Upton, 466 U.S. 727 1053 Massachusetts v. Westcott, 431 U.S. 322 158 Massiah v. United States, 377 U.S. 201 454, 672 Mathews v. Eldridge, 424 U.S. 319 110, 136, 264, 274, 304, 306 Mathis v. United States, 391 U.S. 1 654, 663 May v. Anderson, 345 U.S. 528 828 May Department Stores Co. v. Williamson, 549 F. 2d 1147 519 McCarthy v. Arndstein, 266 U.S. 34 669 McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164 147-149 McClung v. Silliman, 6 Wheat. 598 842 McCray v. New York, 461 U.S. 961 1262 McCrea v. Busch, 164 Mont. 442 148 McDermott v. Wisconsin, 228 U.S. 115 627 McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273 589 McDonald v. United States, 335 U.S. 451 653 McDonnell Douglas Corp. v. Green, 411 U.S. 792 875, 880 McDonough v. Local 825, International Union of Operating Engineers, 470 F. 2d 261 535 TABLE OF CASES CITED XLV Page McGoldrick v. Compagnie Generale Transatlantique, 309 U.S. 430 689 McGowan v. Maryland, 366 U.S. 420 977 McKeiver v. Pennsylvania, 403 U.S. 528 263, 268, 288 McLaren v. Fleischer, 256 U.S. 477 843, 844 McMann v. Richardson, 397 U.S. 759 508, 510 Meachum v. Fano, 427 U.S. 215 507 Meadows v. Evans, 529 F. 2d 385 923 Mempa v. Rhay, 389 U.S. 128 1267 Menges v. Dentler, 33 Pa. 495 61 Menna v. New York, 423 U.S. 61 508 Mercantile National Bank v. Langdeau, 371 U.S. 555 1017 Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353 126 Michelin Tire Corp. v. Wages, 423 U.S. 276 100 Michigan v. Clifford, 464 U.S. 287 483, 651 Michigan v. Long, 463 U.S. 1032 153, 497, 665 Michigan v. Mosley, 423 U.S. 96 663 Michigan v. Tucker, 417 U.S. 433 654, 663, 664, 667, 668, 670, 671, 684, 686 Michigan v. Tyler, 436 U.S. 499 653 Michigan Canners & Freezers Assn. v. Agricultural Marketing and Bargaining Bd., 467 U.S. 461 699 Middendorf v. Henry, 425 U.S. 25 261 Middlesex Ethics Committee v. Garden State Bar Assn., 457 U.S. 423 238, 239 Miller v. Barilla, 549 F. 2d 648 918 Milliken v. Bradley, 433 U.S. 267 588 Page Mills v. Green, 159 U.S. 651 594 Milner v. Bolger, 546 F. Supp. 375 519 Mincey v. Arizona, 437 U.S. 385 653, 672 Mininsohn v. United States, 101 F. 2d 477 786 Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 242 Miranda v. Arizona, 384 U.S. 436 188, 194, 197, 651-674, 677-686, 1027 Mississippi v. Arkansas, 415 U.S. 289 317 Missouri v. Hunter, 459 U.S. 359 499 Missouri Pacific R. Co. v. Nebraska, 164 U.S. 403 241 Mobay Chemical Corp. v. Costle, 447 F. Supp. 811 993 Mobay Chemical Corp. v. Costle, 517 F. Supp. 252 1000 Monrosa v. Carbon Black Export, Inc., 359 U.S. 180 248 Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752 767, 768, 784, 785 Montana v. Kennedy, 366 U.S. 308 60, 64, 67 Mooney v. Holohan, 294 U.S. 103 485 Moore v. Illinois, 408 U.S. 786 488 Moore v. Illinois, 434 U.S. 220 188, 196, 456 Morris v. D’Amario, 416 A. 2d 137 266, 268 Morris v. Gressette, 432 U.S. 491 345, 349, 350, 352 Morrison-Knudsen Construction Co. v. Director, Office of Workers’ Compensation Programs, 461 U.S. 624 179, 932 Morrissey v. Brewer, 408 U.S. 471 278, 295 Morton v. Mancari, 417 U.S. 535 1018 Morton Buildings of Nebraska, Inc. v. Morton Buildings, Inc., 531 F. 2d 910 769 Moser v. United States, 341 U.S. 41 60, 62, 68 XLVI TABLE OF CASES CITED Page Motor Coach Employees v. Lockridge, 403 U.S. 274 627 Municipal Light Boards v. FPC, 146 U.S. App. D. C. 294 359, 362 Murphy v. Florida, 421 U.S. 794 1033-1035 Murphy v. Waterfront Comm’n of New York Harbor, 378 U.S. 52 442, 443, 669, 670, 687 Murray v. Murray, 621 F. 2d 103 524 Nachman Corp. v. Pension Benefit Guaranty Corp., 446 U.S. 359 720, 727 Nachman Corp. v. Pension Benefit Guaranty Corp., 592 F. 2d 947 727 Napue v. Illinois, 360 U.S. 264 485 Nathanson v. NLRB, 344 U.S. 25 902 NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 80 NAACP v. Button, 371 U.S. 415 36, 78, 80 NAACP v. Claiborne Hardware Co., 458 U.S. 886 880 National Assn, of Greeting Card Publishers v. U. S. Postal Service, 462 U.S. 810 520 National City Bank of New York v. Republic of China, 348 U.S. 356 518 National Foundation v. Fort Worth, 415 F. 2d 41 962 NLRB v. Bell Aerospace Co., 416 U.S. 267 60 NLRB v. Brown, 380 U.S. 278 843 NLRB v. Erie Resistor Corp., 373 U.S. 221 891, 896, 905 NLRB v. Food Store Employees, 417 U.S. 1 900, 905-907 NLRB v. Haberman Construction Co., 641 F. 2d 351 894 NLRB v. Hearst Publications, Inc., 322 U.S. Ill 844, 891, 892 NLRB v. Holly Bra of California, Inc., 405 F. 2d 870 894 NLRB v. Iron Workers, 434 U.S. 335 891 Page NLRB v. J. H. Rutter-Rex Mfg. Co., 396 U.S. 258 899, 902, 908 NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 892 NLRB v. J. Weingarten, Inc., 420 U.S. 251 899, 905 NLRB v. Lundy Mfg. Corp., 286 F. 2d 424 896 NLRB v. MacKay Radio & Telegraph Co., 304 U.S. 333 900 NLRB v. Marine Workers, 391 U.S. 418 538 NLRB v. Mastro Plastics Corp., 354 F. 2d 170 902 NLRB v. Miami Coca-Cola Bottling Co., 360 F. 2d 569 909 NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 751 NLRB v. Seven-Up Bottling Co., 344 U.S. 344 899-901, 905, 907, 908 NLRB v. Superior Roofing Co., 460 F. 2d 1240 901, 902, 909 NLRB v. Transportation Management, Inc., 462 U.S. 393 895 National Railroad Passenger Corp. v. National Assn, of Railroad Passengers, 414 U.S. 453 353 National Society of Professional Engineers v. United States, 435 U.S. 679 785 National Woodwork Mfrs. Assn. v. NLRB, 386 U.S. 612 542 Nebbia v. New York, 291 U.S. 502 342 Nebraska v. Wyoming, 325 U.S. 589 317 Nebraska Press Assn. v. Stuart, 427 U.S. 539 33 Nelson v. Dubois, 232 N. W. 2d 54 145,155-157,164 Nelson Radio & Supply Co. v. Motorola, Inc., 200 F. 2d 911 770 New Colonial Ice Co. v. Helvering, 292 U.S. 435 786 New England Power Co. v. New Hampshire, 455 U.S. 331 88,90 TABLE OF CASES CITED XLVII Page New Jersey v. Portash, 440 U.S. 450 670 New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 147 New Motor Vehicle Bd. v. Fox Co., 439 U.S. 96 243 New Town v. United States, 454 F. 2d 121 141 New York v. Ferber, 458 U.S. 747 269, 965, 975, 977, 978 New York v. Uplinger, 467 U.S. 246 973 New York Assn, for Retarded Children, Inc. v. Carey, 706 F. 2d 956 128 New York State Liquor Authority v. Bellanca, 452 U.S. 714 603 New York Times Co. v. Sullivan, 376 U.S. 254 956 Nippert v. Richmond, 327 U.S. 416 713 Nix v. Williams, 467 U.S. 431 671,688-690 Nolan v. Woodruff, 68 F. R. D. 660 520 North American Coal Corp. v. Huber, 268 N. W. 2d 593 155 North Carolina v. Alford, 400 U.S. 25 508 North Carolina v. Pearce, 395 U.S. 711 207, 208, 498, 499 Northern Pacific R. Co. v. United States, 356 U.S. 1 768 Northern Securities Co. v. United States, 193 U.S. 197 761 North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601 827 Norwood v. Harrison, 413 U.S. 455 78 Novotny v. Great Am. Fed. Sav. & Loan Assn., 584 F. 2d 1235 775 Nye & Nissen v. United States, 336 U.S. 613 786 Nyquist v. Mauclet, 432 U.S. 1 222 Ogilvie v. Fotomat Corp., 641 F. 2d 581 772, 783 Ohio v. Roberts, 448 U.S. 56 1265 Page Ohralik v. Ohio State Bar Assn., 436 U.S. 447 979 Oil Workers v. Missouri, 361 U.S. 363 594, 598 Oklahoma Alcoholic Beverage Control Bd. v. Heublein Wines, Int’l, 566 P. 2d 1158 695 Oklahoma Publishing Co. v. District Court, 430 U.S. 308 33 Old Dominion Co. v. United States, 269 U.S. 55 240 Olim v. Wakinekona, 461 U.S. 238 507 Oliver, In re, 333 U. S. 257 46 Oregon v. Elstad, 61 Ore. App. 673 661 Oregon v. Glover, 32 Ore. App. 177; 33 Ore. App. 553 917 Oregon v. Hass, 420 U.S. 714 670 Oregon v. Mathiason, 429 U.S. 492 655,663 Organized Village of Kake v. Egan, 369 U.S. 60 149 Orozco v. Texas, 394 U.S. 324 654, 659, 663, 664, 677 Ostrowski v. United States Dept, of Labor, Office of Workers Compensation Pro- grams, 653 F. 2d 229 171-173 Ottomano v. United States, 468 F. 2d 269 1265 Owens v. Twomey, 508 F. 2d 858 440 Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Comm’n, 461 U.S. 190 632, 815 Painton & Co. v. Bourns, Inc., 442 F. 2d 216 1002 Paiz v. Hughes, 76 N. M. 562 148 Palmer v. McMahon, 133 U.S. 660 523 Palmore v. Sidoti, 460 U.S. 1018 250 Paluck v. Board of County Comm’rs, 307 N. W. 2d 852 155 Papachristou v. City of Jacksonville, 405 U.S. 156 307 Papp v. Jago, 656 F. 2d 221 440 Parker v. Brown, 317 U.S. 341 102, 470, 478 XLVIII TABLE OF CASES CITED Page Parker v. Levy, 417 U.S. 733 959,965 Parker v. North Carolina, 397 U.S. 790 508, 510 Pasadena City Bd. of Ed. v. Spangler, 427 U. S. 424 586, 587,610 Passarelli Columbia Engineering and Contracting Co., 270 N. Y. 68 933 Patsy v. Florida Bd. of Regents, 457 U.S. 496 923 Patterson v. American Tobacco Co., 535 F. 2d 257 579 Patterson v. Greenwood School Dist. 50, 696 F. 2d 293 618 Patterson v. United States, 222 F. 599 786 Paul v. INS, 521 F. 2d 194 419 Pauley v. Gross, 1 Kan. App. 2d 736 268 Payne v. Arkansas, 356 U.S. 560 661 Payne Co. v. Chrysler Motors Corp., 451 U.S. 557 910 Peick v. Pension Benefit Guaranty Corp., 724 F. 2d 1247 728, 732 Penn Central Transportation Co. v. New York City, 438 U.S. 104 14,1005 Pennoyer v. Neff, 95 U.S. 714 828 Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 14, 1005, 1007 People v. Defore, 242 N. Y. 13 447, 448, 455 People v. Hitch, 12 Cal. 3d 641 483,484 People v. Jones, 47 N. Y. 2d 409 49 People v. Martin, 50 N. Y. 1029 689 People v. Miller, 52 Cal. App. 3d 666 484 People v. Onofre, 51 N. Y. 2d 476 247-249 People v. Tutt, 38 N. Y. 2d 1011 690 Page People ex rel. Wayburn v. Schupf, 39 N. Y. 2d 682 256, 261, 264-266, 268, 273, 279, 280, 291, 296, 299 People of Puerto Rico v. Eastern Sugar Associates, 156 F. 2d 316 242 PepsiCo v. SEC, 563 F. Supp. 828 750 Pereira-Diaz v. INS, 551 F. 2d 1149 419,420 Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437 153,157, 497, 498 Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134 765,772,782 Permian Basin Area Rate Cases, 390 U.S. 747 365 Petrolite Corp. v. United States Environmental Protection Agency, 519 F. Supp. 966 1000 Petty v. Tennessee-Missouri Bridge Comm’n, 359 U.S. 275 518 Phelps v. United States, 274 U.S. 341 11 Phelps Dodge Corp. v. NLRB, 313 U.S. 177 899-901,908 Philadelphia v. New Jersey, 437 U.S. 617 100 Philadelphia, B. & W. R. Co. v. Schubert, 224 U. S. 603 733 Philbrook v. Glodgett, 421 U.S. 707 828 Photovest Corp. v. Fotomat Corp., 606 F. 2d 704 759, 772, 783 Pierson v. Ray, 386 U.S. 547 920 Pike v. Bruce Church, Inc., 397 U.S. 137 100,101 Pine River Logging Co. v. United States, 186 U.S. 279 62, 64 Poafpybitty v. Skelly Oil Co., 390 U.S. 365 148 Poitra v. Demarrias, 502 F. 2d 23 156 Polk County v. Dodson, 454 U.S. 312 453, 919, 920 TABLE OF CASES CITED XLIX Page Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464; 109 U.S. App. D. C. 170 770 Porter v. Warner Holding Co., 328 U.S. 395 124 Portmann v. United States, 674 F. 2d 1155 519 Potomac Electric Power Co. v. Director, OWCP, 449 U.S. 268 932 Powell v. McCormack, 395 U.S. 486 571,572 Power Reactor Co. v. Electricians, 367 U.S. 396 390 Preiser v. Rodriguez, 411 U.S. 475 923 Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501 45, 47-49 Price v. Georgia, 398 U.S. 323 502 Probst v. Southern Stevedoring Co., 379 F. 2d 763 936,937 Procunier v. Martinez, 416 U.S. 396 32, 34, 38 Prudential Ins. Co. v. Benjamin, 328 U.S. 408 88 PruneYard Shopping Center v. Robins, 447 U.S. 74 1005 Pulliam v. Allen, 466 U.S. 522 920 Queen v. Ramasamy, [1965] A. C. 1 673 Railroad Comm’n v. Pullman Co., 312 U.S. 496 236,237 Railroad Retirement Bd. v. Alton R. Co., 295 U.S. 330 727, 733 Railway Employees v. Wright, 364 U.S. 642 576,611 Railway Mail Assn. v. Corsi, 326 U.S. 88 78 Ramah Navajo School Bd., Inc. v. Bureau of Revenue, 458 U.S. 832 147 Randall v. Franchise Tax Bd., 453 F. 2d 381 523 Rasmussen v. Hardin, 461F. 2d 595 345 Ray v. Atlantic Richfield Co., 435 U.S. 151 708 Page Rayonier, Inc. v. United States, 352 U.S. 315 813 Reconstruction Finance Corp. v. J. G. Menihan Corp., 312 U.S. 81 518, 521 Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109 152 Reddi-Wip, Inc. v. Lemay Valve Co., 354 S. W. 2d 913 1001,1002 Reese v. Danforth, 486 Pa. 479 922 Reeves, Inc. v. Stake, 447 U.S. 429 93-96, 103 Regional Rail Reorganization Act Cases, 419 U.S. 102 1017- 1020 Reisman v. Caplin, 375 U.S. 440 748 Rejaie v. INS, 691 F. 2d 139 413 Republic Industries, Inc. v. Teamsters Joint Council, 718 F. 2d 628 728 Republic Steel Corp. v. NLRB, 311 U.S. 7 905 Rescue Army v. Municipal Court, 331 U.S. 549 251 Reyes v. INS, 693 F. 2d 597 413 Reynolds v. United States, 98 U.S. 145 1037,1050-1052 Rhode Island v. Innis, 446 U.S. 291 188,654, 656, 659, 663, 677, 680 Rice v. Santa Fe Elevator Corp., 331 U.S. 218 469,699 Rice v. Sioux City Cemetery, 349 U.S. 70 250 Richardson v. Perales, 402 U.S. 389 106 Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 45 Rideau v. Louisiana, 373 U.S. 723 1038 Riley Investment Co. v. Commissioner, 311 U.S. 55 842 Rindge Co. v. Los Angeles, 262 U.S. 700 241, 244,1014 Rios v. Enterprise Assn. Steamfitters Local 638, 501 F. 2d 622 613 L TABLE OF CASES CITED Page Roberts v. United States, 445 U.S. 552 666 Rochin v. California, 342 U.S. 165 269 Rock Island, A. & L. R. Co. v. United States, 254 U.S. 141 63 Rodriguez v. Compass Shipping Co., 451 U.S. 596 934, 935, 939, 942 Roe v. Wade, 410 U.S. 113 593 Rogers v. Lodge, 458 U.S. 613 928 Rolette County v. Eltobgi, 221 N. W. 2d 645 157 Rondel v. Worsley, [1969] 1 A. C. 191 921 Rosenberg v. Yee Chien Woo, 402 U.S. 49 415, 428 Rosewell v. LaSalle National Bank, 450 U.S. 503 524 Ross v. International Brotherhood of Electrical Workers, 513 F. 2d 840 541 Roviaro v. United States, 353 U.S. 53 485 Rummel v. Estelle, 445 U.S. 263 269 Runyon v. McCrary, 427 U.S. 160 78,815 Rushen v. Spain, 464 U.S. 114 677,1036,1037,1051 Russell Motor Car Co. v. United States, 261 U.S. 514 860 Ryerson v. United States, 312 U.S. 405 842 Saia v. New York, 334 U.S. 558 965 St. Regis Paper Co. v. United States, 368 U.S. 208 61 San Diego Building Trades Council v. Garmon, 353 U.S. 26 152,897 San Juan Star Co., In re, 662 F. 2d 108 29 Santa Clara v. Andrus, 572 F. 2d 660 406 Santobello v. New York, 404 U.S. 257 60, 508-511 Santosky v. Kramer, 455 U.S. 745 263, 265, 306, 308, 460 Page Schantz v. White Lightning, 231 N. W. 2d 812 156,157,164 Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 949, 950, 953, 954, 957, 959-964, 966-969, 975, 978, 979, 981-983, 985 Schenley Corp. v. United States, 326 U.S. 432 786 Scheuer v. Rhodes, 416 U.S. 232 920 Schilling v. Rogers, 363 U.S. 666 349 Schine Chain Theatres, Inc. v. United States, 334 U.S. 110 763,781 Schlesinger v. Reservists To Stop the War, 418 U.S. 208 955 Schmerber v. California, 384 U.S. 757 666-668, 670, 671 Schneckloth v. Bustamonte, 412 U.S. 218 196, 446 Schneider v. State, 308 U.S. 147 964,965 Schonfeld v. Penza, 477 F. 2d 899 535 Schweiker v. Gray Panthers, 453 U.S. 34 119,834,844 Schweiker v. Hansen, 450 U.S. 785 60, 62, 64, 67 Schwimmer v. Sony Corp, of America, 677 F. 2d 946 769 Scott v. City of Niagara Falls, 95 N. Y. Mise. 2d 353 922 Seaboard Air Line R. Co. v. United States, 261 U. S. 299 11 Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., 416 F. 2d 71 770, 773 SEC v. Chenery Corp., 332 U.S. 194 60 SEC v. ESM Government Services, Inc., 645 F. 2d 310 748 SEC v. Sloan, 436 U.S. 103 843, 865 Sellers v. United States, 89 S. Ct. 36 292 Shaffer v. Heitner, 433 U.S. 186 829 Shapiro v. Thompson, 394 U.S. 618 291 TABLE OF CASES CITED LI Page Sharpe v. Harris, 621 F. 2d 530 126,129 Shaw v. Delta Air Lines, Inc., 463 U.S. 85 469 Shelton v. United States, 246 F. 2d 571 509 Sheppard v. Maxwell, 384 U.S. 333 33 Shuttlesworth v. City of Birmingham, 394 U.S. 147 307 Silverthorne Lumber Co. v. United States, 251 U.S. 385 441, 442, 458, 688 Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26 955 Singleton v. Wulff, 428 U.S. 106 954,955 Skidmore v. Swift & Co., 323 U.S. 134 865 Smith v. Allwright, 321 U.S. 649 212 Smith v. Goguen, 415 U.S. 566 965 Smith v. Phillips, 455 UiS. 209 1038,1047 Sniadach v. Family Finance Corp., 395 U. S. 337 827, 965 Snyder v. Massachusetts, 372 U.S. 335 1266,1267 Social Security Bd. v. Nierotko, 327 U.S. 358 843 Sony Corp. v. University City Studios, Inc., 464 U.S. 417 710 South Carolina State Highway Dept. v. Barnwell Brothers, Inc., 303 U.S. 177 92 Southern Motor Carriers Rate Conference, Inc. v. United States, 676 F. 2d 1374 359, 360 Southern Pacific Co. v. Arizona, 325 U.S. 761 88,92 Southern R. Co. v. Seaboard Allied Mining Corp., 442 U. S. 444 345, 349, 350 Southern S.S. Co. v. NLRB, 316 U.S. 31 903 Spano v. New York, 360 U.S. 315 194, 453, 454 Spector Motor Service, Inc. v. O’Connor, 340 U. S. 602 648 Page Spencer v. Zant, 715 F. 2d 1562 1221,1222 Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941 88, 90 Spring v. Constantino, 168 Conn. 563 922 Sprowal v. Hendrick, 438 Pa. 435 268 Stack v. Boyle, 342 U.S. 1 289,297 Stafford v. Briggs, 444 U.S. 527 828 Standard Oil Co. v. Johnson, 316 U.S. 481 152,153 Standard Oil Co. v. United States, 221 U.S. 1 761, 785, 790 Standard Oil Division v. Starks, 528 F. 2d 201 519 Standard Pressed Steel Co. v. Washington Revenue Dept., 419 U.S. 560 648 Stark v. Wickard, 321 U.S. 288 348, 351, 352 State. See also name of State. State v. Ege, 274 N. W. 2d 350 439 State v. Gleason, 404 A. 2d 573 265,268 State v. Kottenbroch, 319 N. W. 2d 465 155 State v. Logan, 60 Ohio St. 2d 126 496 State v. Sheppard, 182 Conn. 412 49 State v. Williams, 182 N. W. 2d 396 437 State Bd. of Equalization v. Young’s Market Co., 299 U.S. 59 712 State ex rel. Donahey v. Edmondson, 89 Ohio St. 93 497 State of Maine Dept, of Transportation v. ICC, 587 F. 2d 541 635 State Tax Comm’n v. Van Cott, 306 U.S. 511 152 Staub v. City of Baxley, 355 U.S. 313 307 Steelworkers v. Sadlowski, 457 U.S. 102 537, 542, 553, 554, 556 LII TABLE OF CASES CITED Page Steelworkers v. Weber, 443 U.S. 193 587, 589, 611 Stevens & Co. v. NLRB, 461 U.S. 490 894 Stewart v. Gorter, 70 Md. 242 242 Stone v. Powell, 428 U.S. 465 450, 455, 456 Stovall v. Denno, 388 U. S. 293 456 Strickland v. Washington, 466 U.S. 668 453 Stromberg v. California, 283 U.S. 359 965 Sugarman v. Dougall, 413 U.S. 634 220-222,228 Sullivan v. Wainwright, 464 U.S. 109 1222 Sumner v. Mata, 449 U.S. 539 280 Sumner v. Mata, 455 U.S. 591 677 Sunkist Growers, Inc. v. Winckler & Smith Citrus Products Co., 370 U.S. 19 773 Super Tire Engineering Co. v. McCorkle, 416 U.S. 115 570, 586 Supervisors v. Stanley, 105 U.S. 305 976 Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356 874 Sutton v. United States, 256 U.S. 575 62, 64 Swain v. Alabama, 380 U.S. 202 1262-1264 Sweet v. Rechel, 159 U. S. 380 10 Sweezey v. Arc Electrical Construction Co., 295 N. Y. 306 933 Swift & Co. v. Wickham, 382 U.S.Ill 212 Switchmen v. National Mediation Bd., 320 U.S. 297 347, 349 Taggart v. Mandel, 391 F. Supp.733 219 Tang v. Ping, 209 N. W. 2d 624 155 Taylor v. Louisiana, 419 U.S. 522 1262 Teamsters v. United States, 431 U.S. 324 577, 578, 581, 582, 587, 588, 612, 614-617, 621, 876, 902 Tehan v. United States ex rel. Shott, 382 U.S. 406 456 Page Teitel Film Corp. v. Cusack, 390 U.S. 139 965 Teleprompter Corp. v. Columbia Broadcasting System, Inc., 415 U.S. 394 709 TVA v. Hill, 437 U.S. 153 866 TVA v. Welch, 327 U.S. 546 240 Tenney v. Brandhove, 341 U.S. 367 920 Territory. See name of Territory. Terry v. Ohio, 392 U.S. 1 264, 456 Texas Dept, of Community Affairs v. Burdine, 450 U.S. 248 875 Textile Workers Pension Fund v. Standard Dye & Finishing Co., 725 F. 2d 843 728,732 Thomas v. George Hyman Construction Co., 173 F. Supp. 381 933,937 Thompson v. Consolidated Gas Corp., 300 U.S. 55 241 Thompson v. Louisville, 362 U.S. 199 292 Thompson v. Sawyer, 219 U.S. App. D. C. 393 613 Thomson v. Gaskill, 315 U.S. 442 73 Thornhill v. Alabama, 310 U.S. 88 964 Tileston v. Ullman, 318 U.S. 44 955 Timken Roller Bearing Co. v. United States, 341 U.S. 593 764, 765, 782, 786 Tollett v. Henderson, 411 U.S. 258 508,510 Tose v. First Pennsylvania Bank, N. A., 648 F. 2d 879 769 Townsend v. Sain, 372 U.S. 293 507,1031 Train v. Natural Resources Defense Council, Inc., 421 U.S. 60 843-845 Trans Alaska Pipeline Rate Cases, 436 U.S. 631 355, 365, 366, 372, 373 Trbovich v. Mine Workers, 404 U.S. 528 539, 540, 549, 550, 559, 560 TABLE OF CASES CITED LIII Page Trico Products Corp. v. NLRB, 489 F. 2d 347 902 Trust Fund Service v. Aro Glass Co., 89 Wash. 2d 758 30 Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 710 Udall v. Tailman, 380 U.S. 1 390, 843 Unemployment Compensation Comm’n v. Aragon, 329 U.S. 143 389, 843, 844 Union Electric Co. v. EPA, 427 U.S. 246 844 Union Pacific Coal Co. v. United States, 173 F. 737 786 Uniservices, Inc., In re, 517 F. 2d 492 1002 United Air Lines, Inc. v. Mahin, 410 U.S. 623 152, 157 United Air Lines, Inc. v. Mahin, 54 Ill. 2d 431 158 United Building and Construction Trades Council v. Mayor of Camden, 465 U.S. 208 . 95 United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332 359 United States v. Agurs, 427 U.S. 97 480, 485, 488, 489, 511 United States v. American Tobacco Co., 221 U.S. 106 761 United States v. Ammar, 714 F. 2d 238 1265 United States v. Apker, 705 F. 2d 293 440 United States v. Armour & Co., 402 U.S. 673 574 United States v. Arthur Young & Co., 465 U.S. 805 751 United States v. Ash, 413 U.S. 300 189, 196, 446, 447, 672 United States v. Augenblick, 393 U.S. 348 491 United States v. Bienvenue, 632 F. 2d 910 440 United States v. Bisceglia, 420 U.S. 141 751 United States v. Blevins, 593 F. 2d 646 190 United States v. Bodcaw Co., 440 U.S. 202 6 Page United States v. Borden Co., 308 U.S. 188 1017 United States v. Bowdach, 561 F. 2d 1160 279 United States v. Bridell, 180 F. Supp. 268 786 United States v. Brookins, 614 F. 2d 1037 440 United States v. Bryant, 142 U.S. App. D. C. 132 484 United States v. Burr, 25 F. Cas. 49 1038 United States v. Calandra, 414 U.S. 338 456 United States v. California, 332 U.S. 19 63 United States v. Candelaria, 271 U.S. 432 148 United States v. Causby, 328 U.S. 256 1016 United States v. Ceccolini, 435 U.S. 268 445 United States v. Chesapeake & Ohio R. Co., 426 U.S. 500 365, 372, 373 United States v. Childress, 715 F. 2d 1313 1264 United States v. Citizens & Southern National Bank, 422 U.S. 86 783 United States v. City of Alexandria, 614 F. 2d 1358 613 United States v. City of Chicago, 663 F. 2d 1354 613 United States v. Clardy, 540 F. 2d 439 190 United States v. Clark, 445 U.S. 23 515 United States v. Clarke, 445 U.S. 253 5 United States v. Colgate & Co., 250 U.S. 300 94, 776, 789, 790, 796 United States v. Columbia Steel Co., 334 U.S. 495 792 United States v. Commodities Trading Corp., 339 U.S. 121 10 United States v. Consolidated Coal Co., 424 F. Supp. 577 786 United States v. Crescent Amusement Co., 323 U.S. 173 762, 763, 780, 781, 793 LIV TABLE OF CASES CITED Page United States v. Crews, 445 U.S. 463 444, 688 United States v. Cronic, 466 U.S. 648 453, 457, 510 United States v. Daniels, 698 F. 2d 221 190 United States v. Darusmont, 449 U.S. 292 731, 732 United States v. Davis, 710 F. 2d 104 278 United States v. Dickinson, 331 U.S. 745 5 United States v. Dionisio, 410 U.S. 1 666 United States v. Doe, 465 U.S. 605 742 United States v. Dow, 357 U.S. 17 5 United States v. Duncan, 598 F. 2d 839 1038 United States v. Edwards, 430 A. 2d 1321 295 United States v. E. I du Pont de Nemours & Co., 351 U.S. 377 789 United States v. Erika, Inc., 456 U.S. 201 347 United States v. 15.65 Acres of Land, 689 F. 2d 1329 9, 13 United States v. 59.29 Acres of Land, 495 F. Supp. 212 9 United States v. Fisher, 700 F. 2d 780 440 United States v. 564.54 Acres of Land, 441 U.S. 506 10 United States v. Frankfort Distilleries, Inc., 324 U.S. 293 713 United States v. General Motors Corp., 323 U.S. 373 1003, 1005 United States v. Gettysburg Electric R. Co., 160 U.S. 668 241 United States v. Goodwin, 457 U.S. 368 510 United States v. Greenman, 700 F. 2d 1377 507 United States v. Griffin, 401 F. Supp. 1222 786 Page United States v. Griffith, 334 U.S. 100 763, 781 United States v. Grinnell Corp., 384 U.S. 563 767 United States v. Hartley, 678 F. 2d 961 786 United States v. Heldt, 215 U.S. App. D. C. 206 44 United States v. Henry, 447 U.S. 264 196, 455 United States v. Holmes, 452 F. 2d 249 44 United States v. I. B. E. W., Local No. 38, 428 F. 2d 144 613 United States v. Ironworkers Local 86, 443 F. 2d 544 613, 619 United States v. ITT Continental Baking Co., 420 U.S. 223 607 United States v. Janis, 428 U.S. 433 456 United States v. Kelley, 526 F. 2d 615 1265 United States v. Kemmel, 160 F. Supp. 718 786 United States v. Kordel, 397 U.S 1 670 United States v. LaSalle National Bank, 437 U.S. 298 748 United States v. Lee Way Motor Freight, Inc., 625 F. 2d 918 613 United States v. Lovasco, 431 U.S. 783 190, 192, 486 United States v. Lurz, 666 F. 2d 69 1265 United States v. MacDonald, 456 U.S. 1 190 United States v. Mandujano, 425 U.S. 564 188, 196 United States v. Mara, 410 U.S. 19 666 United States v. Marion, 404 U.S. 307 186, 190-192, 486 United States v. Matlock, 415 U.S. 164 444 United States v. Mendenhall, 446 U.S. 544 656 United States v. Merz, 376 U.S. 192 8 TABLE OF CASES CITED LV Page United States v. Midwest Video Corp., 406 U.S. 649 700 United States v. Miller, 317 U.S. 369 10 United States v. Miller, 425 U.S. 435 743, 745 United States v. Mills, 641 F. 2d 785 184 United States v. Moore, 95 U.S. 760 844 United States v. Morrison, 429 U.S. 1 210 United States v. Morrison, 449 U.S. 361 201, 202, 456 United States v. Morton, 467 U.S. 822 844 United States v. Muniz, 374 U.S. 150 814 United States v. Munsingwear, Inc., 340 U.S. 36 584, 594 United States v. Neary, 552 F. 2d 1184 279 United States v. Offices Known as 50 State Distributing Co., 708 F. 2d 1371 44 United States v. Oliver, 505 F. 2d 301 194 United States v. 156.81 Acres of Land, 671 F. 2d 336 9 United States v. Parke, Davis & Co., 362 U.S. 29 764, 785, 790 United States v. Peacock, 654 F. 2d 339 1265 United States v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655 60, 68 United States v. Perez, 658 F. 2d 654 1265 United States v. Powell, 379 U.S. 48 739, 742, 747-749 United States v. Public Utilities Comm’n of California, 345 U.S. 295 91 United States v. Raines, 362 U.S. 17 269, 955, 959, 976 United States v. Reading Co., 253 U.S. 26 761 United States v. Rettig, 589 F. 2d 418 44 United States v. Robinson, 414 U.S. 218 656 Page United States v. Romero, 692 F. 2d 699 441 United States v. Roper, 681 F. 2d 1354 441 United States v. Ruzicka, 329 U.S. 287 348 United States v. Sampson, 371 U.S. 75 786 United States v. San Francisco, 310 U.S. 16 63 United States v. Schell, 692 F. 2d 672 278 United States v. Schmidt, 573 F. 2d 1057 441 United States v. Scott, 437 U.S. 82 211 United States v. Seohnlein, 423 F. 2d 1051 440 United States v. Shaw, 309 U.S. 495 518 United States v. Shimer, 367 U.S. 374 699, 700, 845, 865, 866 United States v. Southwestern Cable Co., 392 U.S. 157 699, 702 United States v. Stewart, 311 U.S. 60 62, 63 United States v. Stewart, 531 F. 2d 326 279 United States v. Swift & Co., 286 U.S. 106 583, 610 United States v. Tamura, 694 F. 2d 591 44 United States v. 329.73 Acres of Land, 704 F. 2d 800 11 United States v. Timken Roller Bearing Co., 83 F. Supp. 284 765 United States v. Toral, 636 F. 2d 893 661 United States v. Tucker, 404 U.S. 443 295 United States v. Turkette, 452 U.S. 576 791 United States v. United Shoe Machinery Corp., 391 U.S. 244 610 United States v. Utah Constr. & Mining Co., 384 U.S. 394 637 United States v. Valenzuela- Bernal, 458 U.S. 858 485, 486 LVI TABLE OF CASES CITED Page United States v. Wade, 388 U.S. 218 188, 189, 195, 442, 444, 445, 456, 458, 459, 666, 668, 1267 United States v. Washington, 431 U.S. 181 654 United States v. Williamson, 567 F. 2d 610 279 United States v. Wilson, 420 U.S. 332 211, 212, 214, 499 United States v. Wiltberger, 5 Wheat. 76 499 United States v. Wright, 588 F. 2d 31 1265 United States v. Yellow Cab Co., 332 U.S. 218 760-765, 779, 781, 782, 790, 792 United States ex rel. Bennett v. Rundle, 419 F. 2d 599 46, 47, 49 United States ex rel. Hall v. Hansen, 303 N. W. 2d 349 145, 156 United States ex rel. Owens v. Twomey, 508 F. 2d 858 440 United States ex rel. TVA v. Welch, 327 U.S. 546 240 U. S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711 875 United States Steel Corp. v. Fortner Enterprises, Inc., 429 U.S. 610 102, 789 United States Trust Co. v. New Jersey, 431 U.S. 1 243, 733 United Virginia Bank/National v. Eaves, 416 F. Supp. 518 519 University of California Regents v. Bakke, 438 U.S. 265 81, 588, 612, 620 University of Texas v. Camen-isch, 451 U.S. 390 572, 585, 586, 601-604 Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 728-730, 733 Utah v. United States, 284 U.S. 534 63 Utah Power & Light Co. v. United States, 243 U.S. 389 64, 66 Vance v. Bradley, 440 U.S. 93 242 Page Vanderbilt v. Vanderbilt, 354 U.S. 416 828 Varnedare v. State, 264 Ark. 596 507 Vermillion v. Spotted Elk, 85 N. W. 2d 432 144, 145, 147, 148, 150, 160-163 Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519 131 Virginia Electric & Power Co. v. NLRB, 319 U.S. 533 908 Virgin Islands v. Gereau, 502 F. 2d 914 440 Virgin Islands v. Scotland, 614 F. 2d 360 507 Volkswagenwerk v. FMC, 390 U.S. 261 843 Von Wallhoffen v. Newcombe, 10 Hun. 236 921 Wainwright v. Adams, 466 U.S. 964 1222 Walker v. City of Birmingham, 388 U.S. 307 600 Wan v. United States, 266 U.S. 1 682 Warden v. Hayden, 387 U.S. 294 653 Warth v. Seldin, 422 U.S. 490 955 Washington v. Davis, 426 U.S. 229 583 Washington v. Texas, 388 U.S. 14 486 Washington v. United States, 460 U.S. 536 647 Washington v. Yakima Indian Nation, 439 U.S. 463 143, 146, 150, 151, 161, 164, 166 Washington Star Co. v. International Typographical Union Negotiated Pension Plan, 235 U.S. App. D. C. 1 728 Wayburn v. Schupf, 39 N. Y. 2d 682 256, 261, 264-266, 268, 273, 279, 280, 291, 296, 299 Wayne v. United States, 115 U.S. App. D. C. 234 440 TABLE OF CASES CITED LVII Page Weatherford v. Bursey, 429 U.S. 545 456, 669, 686 Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155 1001, 1006, 1012 Webster v. Luther, 163 U.S. 331 843, 844 Weinberger v. Salfi, 422 U.S. 749 110 Welch v. Henry, 305 U.S. 134 733 Western & Southern Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 648 88, 242, 1015 Westinghouse Electric Corp. v. United States Nuclear Regulatory Comm’n, 555 F. 2d 82 1008 Whalen v. Roe, 429 U.S. 589 35 Whalen v. United States, 445 U.S. 684 158, 269, 489 White v. Massachusetts Council of Construction Employers, Inc., 460 U.S. 204 91, 93-97, 99, 103 White v. Mathews, 559 F. 2d 852 116, 120, 126, 127 White v. Mathews, 434 F. Supp. 1252 129 White Eagle v. Dorgan, 209 N. W. 2d 621 144 White Mountain Apache Tribe v. Bracker, 448 U.S. 136 147 Whiteshield, In re, 124 N. W. 2d 694 144, 145 Whiting v. Hoffine, 294 N. W. 2d 921 148 Whitten, Jr., Inc. v. Paddock Pool Builders, Inc., 508 F. 2d 547 Wilber National Bank v. United States, 294 U.S. 120 59, 63 Williams v. Brewer, 375 F. Supp. 170 437 Williams v. Illinois, 399 U.S. 235 291 Williams v. Illinois, 466 U.S. 981 1262 Williams v. Illinois, 467 U.S. 1268 1264 Page Williams v. Lee, 358 U.S. 217 140, 142, 147, 148, 156, 160, 161, 163 Williams v. Norris, 12 Wheat. 117 842 William Inglis & Sons Baking Co. v. ITT Continental Baking Co., 668 F. 2d 1014 783 Williamson v. Lee Optical Co., 348 U.S. 483 979 Wilson v. Iseminger, 185 U.S. 55 242 Windsor v. Gibson, 424 So. 2d 888 922 Winship, In re, 397 U.S. 358 259, 263, 275, 282, 291, 315 Wirtz v. Glass Bottle Blowers Assn., 389 U.S. 463 536, 539, 541, 542, 549 Wirtz v. Hotel Employees, 391 U.S. 492 549, 553 Wirtz v. Laborers, 389 U.S. 477 536, 539, 549 Wisconsin v. Constantineau, 400 U.S. 433 237, 712 Wolf, Ex parte, 116 Tex. Crim. 127 225 Wolff v. McDonnell, 418 U.S. 539 185 Wong Sun v. United States, 371 U.S. 471 441, 442, 459, 671, 688, 689 Wood v. Strickland, 420 U.S. 308 920 Woodby v. INS, 385 U.S. 276 424 Woodson v. North Carolina, 428 U.S. 280 1267 Worcester v. Georgia, 6 Pet. 515 142, 147 World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 829 W. R. Grace & Co. v. Rubber Workers, 461 U.S. 757 588, 597, 600, 605, 606 Wright v. Califano, 587 F. 2d 345 127 Wyoming v. Colorado, 259 U.S. 419 319, 327, 329, 339 Yazoo & M. V. R. Co. v. Jack- son Vinegar Co., 226 U.S. 217 976 LVIII TABLE OF CASES CITED Page Yearsley v. Ross Construction Co., 309 U.S. 18 1017 Youakim v. Miller, 425 U.S. 231 697 Younger v. Harris, 401 U.S. 37 236-238, 923, 973, 976 Zablocki v. Redhail, 434 U.S. 374 307 Zamora v. INS, 534 F. 2d 1055 419, 420 Zemel v. Rusk, 381 U.S. 1 32 Page Zenith Radio Corp. v. Matsushita Electric Industrial Co., 529 F. Supp. 866 36 Zenith Radio Corp. v. United States, 437 U.S. 443 843 Ziffrin, Inc. v. Reeves, 308 U.S. 132 712 Zuber v. Allen, 396 U.S. 168 341, 352 Zwickler v. Koota, 389 U.S. 241 237, 966 CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES AT OCTOBER TERM, 1983 KIRBY FOREST INDUSTRIES, INC. v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 82-1994. Argued February 22, 1984—Decided May 21, 1984 Petitioner manufacturer of forest products owns substantial timberland in Texas. On August 21, 1978, after negotiations to acquire over 2,000 acres of this land for a national preserve had broken down, the United States filed a “straight-condemnation” complaint under 40 U. S. C. §257. Shortly thereafter, the United States filed a notice of lis pendens, notifying the public of the institution of the proceeding. The District Court referred the matter to a special commission to ascertain the compensation due petitioner. Trial before the commission began on March 6,1979, and after hearing competing testimony as to the fair market value of the land, the commission entered a report recommending compensation in the amount of $2,331,202. The District Court entered judgment awarding petitioner compensation for that amount, plus 6% interest for the period from the date the complaint was filed to the date the Government deposited the adjudicated value of the land with the court. On March 26, 1982, the United States deposited the amount of the judgment in the District Court’s registry, and, on that same date, acquired title to the land. The Court of Appeals reversed the award of interest to petitioner, holding that the date of the taking should be deemed the date on which the compensation award was paid and that hence no interest was due on that award. The court also ruled that the commission inadequately explained its valuation of the land, and accordingly remanded the case to the District Court for further findings regarding the value. 1 2 OCTOBER TERM, 1983 Syllabus 467 U. S. Held: 1. The taking of petitioner’s land occurred on March 26, 1982, and because the award was paid on that date, no interest was due thereon. Pp. 9-16. (a) That the date of taking in “straight-condemnation” proceedings must be deemed the date on which the United States tenders payment to the landowner is amply supported by this Court’s prior decisions and by indications of congressional intent derived from the structure of the pertinent statutory scheme and Federal Rule of Civil Procedure 71A. Rule 71A(i) permits the United States to dismiss a condemnation suit at any time before compensation has been determined and paid, unless the United States has previously acquired title or taken possession. The Government’s capacity in this fashion to withdraw from the proceeding would be difficult to explain if a taking were effectuated prior to tendering of payment. And the option given to the Government in 40 U. S. C. § 258a of peremptorily appropriating land prior to final judgment would have been superfluous if a taking occurred upon the filing of a complaint in a § 257 suit. Pp. 11-13. (b) Prior to payment of the condemnation award in this case, there was no interference with petitioner’s property interests severe enough to give rise to a taking entitling petitioner to just compensation under the Fifth Amendment. Until title passed to the United States, petitioner was free to make whatever use of its property it pleased. The Government never forbade petitioner to cut trees on the land or develop it in some other way. Nor did the Government abridge petitioner’s right to sell the land. While the initiation of condemnation proceedings, publicized by the lis pendens notice, may have reduced the selling price of the land, impairment of the market value of property incident to otherwise legitimate governmental action ordinarily does not result in a taking, and did not do so here. Pp. 13-16. 2. Petitioner’s constitutional entitlement to the value of its land on the date of the taking can be accommodated by allowing petitioner, on remand, to present evidence pertaining to change in the market value of the property during the substantial delay between the date of valuation and the date the Government tendered payment. Other condemnees who find themselves in petitioner’s position may avail themselves of Federal Rule of Civil Procedure 60(b), which empowers a district court, upon motion of a party, to withdraw or amend a final judgment for “any . . . reason justifying relief from the operation of the judgment.” Pp. 16-19. 696 F. 2d 351, affirmed. Marshall, J., delivered the opinion for a unanimous Court. KIRBY FOREST INDUSTRIES, INC. v. UNITED STATES 3 1 Opinion of the Court Joe G. Roady argued the cause and filed briefs for petitioner. Harriet S. Shapiro argued the cause for the United States. With her on the brief were Solicitor General Lee, Assistant Attorney General Habicht, Deputy Assistant Attorney General Liotta, Raymond N. Zagone, and Jacques B. Gelin.* Justice Marshall delivered the opinion of the Court. Title 40 U. S. C. § 257, in conjunction with Rule 71A of the Federal Rules of Civil Procedure, prescribes a procedure pursuant to which the United States may appropriate privately owned land by eminent domain. The central issue in this case is whether the manner in which the value of the land is determined and paid to its owner under that procedure comports with the requirement, embodied in the Fifth Amendment, that private property not be taken for public use without just compensation. I A The United States customarily employs one of three methods when it appropriates private land for a public purpose. The most frequently used is the so-called “straightcondemnation” procedure prescribed in 40 U. S. C. §257. Under that statute, an “officer of the Government” who is “authorized to procure real estate for the erection of a public building or for other public uses”1 makes an application to the Attorney General who, within 30 days, must initiate condemnation proceedings. The form of those proceedings is * Jerrold A. Fadem and Michael M. Berger filed a brief for Laughlin Recreational Enterprises, Inc., as amicus curiae urging reversal. 1 Such authorization generally is derived from some independent statute that vests the officer with the power of eminent domain but does not prescribe the manner in which that power should be exercised. See, e. g., 16 U. S. C. §404c-ll. 4 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. governed by Federal Rule of Civil Procedure 71 A.2 In brief, Rule 71A requires the filing in federal district court of a “complaint in condemnation,” identifying the property and the interest therein that the United States wishes to take, followed by a trial—before a jury, judge, or specially appointed commission—of the question of how much compensation is due the owner of the land. The practical effect of final judgment on the issue of just compensation is to give the Government an option to buy the property at the adjudicated price. Danforth v. United States, 308 U. S. 271, 284 (1939). If the Government wishes to exercise that option, it tenders payment to the private owner, whereupon title and right to possession vest in the United States. If the Government decides not to exercise its option, it can move for dismissal of the condemnation action. Ibid.; see Fed. Rule Civ. Proc. 71A(i)(3). A more expeditious procedure is prescribed by 40 U. S. C. §258a.3 That statute empowers the Government, “at any time before judgment” in a condemnation suit, to file “a declaration of taking signed by the authority empowered by law to acquire the lands [in question], declaring that said lands are thereby taken for the use of the United States.” The Government is obliged, at the time of the filing, to deposit in the court, “to the use of the persons entitled thereto,” an 2 Suits under § 257 originally were required to “conform, as near as may be, to the practice, pleadings, forms and proceedings existing at the time in like causes in the courts of record of the State” in which the suits were instituted. Act of Aug. 1, 1888, ch. 728, § 2, 25 Stat. 357. The adoption in 1951 of Rule 71A capped an effort to establish a uniform set of procedures governing all federal condemnation actions. See Advisory Committee’s Notes on Rule 71A, Original Report, 28 U. S. C. App., p. 644. 3 Section 258a was enacted in 1931, for the principal purpose of enabling the United States, when it wished, peremptorily to appropriate property on which public buildings were to be constructed, making it possible for the Government to begin improving the land, thereby stimulating employment during the Great Depression. See H. R. Rep. No. 2086, 71st Cong., 3d Sess. (1930). KIRBY FOREST INDUSTRIES, INC. v. UNITED STATES 5 1 Opinion of the Court amount of money equal to the estimated value of the land.4 Title and right to possession thereupon vest immediately in the United States. In subsequent judicial proceedings, the exact value of the land (on the date the declaration of taking was filed) is determined, and the owner is awarded the difference (if any) between the adjudicated value of the land and the amount already received by the owner, plus interest on that difference. Finally, Congress occasionally exercises the power of eminent domain directly. For example, when Congress thinks that a tract of land that it wishes to preserve inviolate is threatened with imminent alteration, it sometimes enacts a statute appropriating the property immediately by “legislative taking” and setting up a special procedure for ascertaining, after the appropriation, the compensation due to the owners.5 In addition to these three statutory methods, the United States is capable of acquiring privately owned land summarily, by physically entering into possession and ousting the owner. E. g., United States v. Dickinson, 331 U. S. 745, 747-749 (1947). In such a case, the owner has a right to bring an “inverse condemnation” suit to recover the value of the land on the date of the intrusion by the Government. United States v. Dow, 357 U. S. 17, 21-22 (1958).6 The Government’s selection amongst and implementation of these various methods of acquiring property is governed, 4 The owner is entitled to prompt distribution of the deposited funds. 40 U. S. C. §258a; Fed. Rule Civ. Proc. 71A(j). BSee, e. g., 16 U. S. C. § 79c(b) (vesting in the United States “all right, title, and interest” in the land encompassed by the Redwood National Park as of the date of the enactment of the statute). 6 Such a suit is “inverse” because it is brought by the affected owner, not by the condemnor. United States v. Clarke, 445 U. S. 253, 257 (1980). The owner’s right to bring such a suit derives from “ ‘the self-executing character of the constitutional provision with respect to condemnation. . . Ibid, (quoting 6 P. Nichols, Eminent Domain §25.41 (3d rev. ed. 1972)). 6 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. to some extent, by the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U. S. C. §4601 et seq. That statute enjoins federal agencies, inter alia, to attempt to acquire property by negotiation rather than condemnation, and whenever possible not to take land by physical appropriation. §§4651(1), (4), (8). In addition, the statute requires a court with jurisdiction over a condemnation action that is dismissed or abandoned by the Government to award the landowner an amount that will reimburse him for “his reasonable costs, disbursements, and expenses” incurred in contesting the suit. § 4654(a).7 The statute does not, however, regulate decisions by the Government whether to employ the “straight-condemnation” procedure prescribed in § 257 or the “declaration of taking” procedure embodied in §258a. B Petitioner, a manufacturer of forest products, owns substantial tracts of timberland in Texas. This case arises out of a protracted effort by the United States to appropriate 2,175.86 acres of that land. In the mid-1960’s, several studies were made of the desirability of establishing a national park or preserve to protect an area of relatively untrammeled wilderness in eastern Texas. One of those studies, conducted in 1^967 by the National Park Service, recommended the creation of a 35,500-acre Big Thicket National Park. The Texas Forestry Association, of which petitioner is a member, endorsed that proposal and declared a voluntary moratorium on logging in the designated area. Since 1967, petitioner has observed that moratorium and has not cut any trees on its property lying within the area demarked by the Park Service.8 7 We have held that the last-mentioned provision for the reimbursement of costs is a matter of legislative grace, not constitutional entitlement. United States v. Bodcaw Co., 440 U. S. 202, 204 (1979) (per curiam). 8 Testimony at trial by one of petitioner’s officers suggested that, regardless of the existence of the moratorium, petitioner would not have cut KIRBY FOREST INDUSTRIES, INC. v. UNITED STATES 7 1 Opinion of the Court After seven years of desultory consideration of the matter, Congress rejected the Park Service proposal and enacted legislation creating a much larger Big Thicket National Preserve. Act of Oct. 11, 1974, Pub. L. 93-439, 88 Stat. 1254, 16 U. S. C. §698 et seq. The statute directed the Secretary of the Interior to acquire the land within the boundaries of the Preserve. 16 U. S. C. § 698(c). The Senate Report made clear that, though the Secretary had the authority to acquire individual tracts by declaration of taking, pursuant to 40 U. S. C. §258a, such a peremptory procedure should be employed only when necessary to protect a parcel from destruction. S. Rep. No. 93-875, p. 5 (1974). It was understood that, in the absence of such an emergency, the Secretary would purchase the land using the straightcondemnation method prescribed in 40 U. S. C. §257.9 The Government initially attempted to acquire the acreage owned by petitioner through a negotiated purchase. On August 21, 1978, after those negotiations had broken down, the United States filed a complaint in condemnation in the District Court for the Eastern District of Texas. Shortly thereafter, the Government filed a notice of lis pendens, notifying the public of the institution of the condemnation proceeding. The District Court referred the matter to a special commission to ascertain the compensation due petitioner. Trial before the commission began on March 6, 1979. On that day, the parties stipulated that “today is the date of taking.” After hearing competing testimony pertaining to the fair market value of petitioner’s land, the commission any trees on that land, which it had held as a “reserve logging area” since the 1950’s. Brief for United States 8, citing 1 Tr. 52. For the purpose of our decision, we place no weight on that testimony; we assume that petitioner voluntarily forwent an opportunity to make profitable use of its land. 9 The House bill had contained a provision appropriating the land by a legislative taking. H. R. 11546, 93d Cong., 1st Sess., §2 (1973). The Senate rejected this method on the ground that it was unnecessary to protect the land and would be unduly expensive. S. Rep. No. 93-875, pp. 5-6 (1974). The House acceded to the Senate’s position. 8 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. entered a report recommending compensation in the amount of $2,331,202. Both parties filed objections to the report in the District Court. On August 13, 1981, after holding a hearing to consider those objections, the District Court entered judgment awarding petitioner compensation in the amount recommended by the commission, plus interest at a rate of six percent for the period from August 21, 1978 (the date the complaint had been filed), to the date the Government deposited the adjudicated value of the land with the court. United States v. 2,1^5.86 Acres of Land, 520 F. Supp. 75, 81 (1981). The court justified its award of interest on the ground that the institution of condemnation proceedings had “effectively denied [petitioner] economically viable use and enjoyment of its property” and therefore had constituted a taking. Id., at 80.10 On March 26, 1982, the United States deposited the total amount of the judgment in the registry of the District Court. On the same date, the Government acquired title to the land. Both parties appealed. A panel of the Court of Appeals for the Fifth Circuit unanimously ruled that the commission’s report failed to meet the standards enunciated in United States v. Merz, 376 U. S. 192 (1964), and remanded the case for further findings regarding the value of petitioner’s land. United States v. 2,175.86 Acres of Land, 696 F. 2d 351, 358 (1983). More importantly for present purposes, the Court of Appeals, by a vote of two to one, reversed the District Court’s award of interest to petitioner. Reasoning that “the mere commencement of straight condemnation proceedings, where the government does not enter into possession . . . , does not constitute a taking,” id., at 355, the court held that, 10 The District Court did not expressly rule upon petitioner’s contention that the stipulation entered into by the parties on the opening day of trial established the date of the taking. But, by awarding interest as of the date of the filing of the complaint, the court implicitly rejected petitioner’s submission on that issue. KIRBY FOREST INDUSTRIES, INC. v. UNITED STATES 9 1 Opinion of the Court in this case, the date of the taking should be deemed the date on which the compensation award was paid.11 Consequently, no interest was due on that award.12 We granted certiorari to resolve a conflict in the Circuits regarding the date on which the taking, in a “straightcondemnation” proceeding, should be deemed to occur and the constitutional obligation of the United States to pay interest on the adjudicated value of the property.13 464 U. S. 913 (1983). We now affirm. II The United States has the authority to take private property for public use by eminent domain, Kohl v. United States, 91 U. S. 367, 371 (1876), but is obliged by the Fifth Amendment to provide “just compensation” to the owner thereof. 11 The Court of Appeals agreed with the District Court that the parties’ stipulation regarding the “date of taking” was not controlling, see n. 10, supra. After reviewing the record, the Court of Appeals determined that the stipulation pertained only to the date as of which the land was to be valued, not the date on which the Government was deemed to have appropriated the land. 696 F. 2d, at 356. We see no reason to question that determination. 12 Judge Jolly dissented on this issue, arguing that the owner of unimproved land subject to condemnation proceedings under 40 U. S. C. §257 is entitled to interest on the award at least for the period beginning with entry of judgment by the district court, because during that period the owner is “shackled from making economically viable use of his property.” 696 F. 2d, at 358-359. 13 In two cases, panels of the Court of Appeals for the Ninth Circuit have rejected the position taken by the Fifth Circuit in this case, holding that, when the United States condemns unimproved property using the method prescribed in 40 U. S. C. § 257, it must award interest to the owner for some period prior to the date the award is paid and title passes. United States v. 15:65 Acres of Land, 689 F. 2d 1329 (1982), cert, denied sub nom. Marin Ridgeland Co. v. United States, 460 U. S. 1041 (1983); United States v. 156.81 Acres of Land, 671 F. 2d 336, cert, denied, 459 U. S. 1086 (1982). Similar confusion exists in the District Courts. See, e. g., United States v. 59.29 Acres of Land, 495 F. Supp. 212 (ED Tex. 1980) (date of taking is date of announcement of the award by the commission). 10 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. “Just compensation,” we have held, means in most cases the fair market value of the property on the date it is appropriated. United States v. 56b.Sb Acres of Land, 441 U. S. 506, 511-513 (1979).14 “Under this standard, the owner is entitled to receive ‘what a willing buyer would pay in cash to a willing seller’ at the time of the taking.” Id., at 511 (quoting United States v. Miller, 317 U. S. 369, 374 (1943)).15 If the Government pays the owner before or at the time the property is taken, no interest is due on the award. See Danforth v. United States, 308 U. S., at 284. Such a mode of compensation is not constitutionally mandated; the Fifth Amendment does not forbid the Government to take land and pay for it later. Sweet v. Rechel, 159 U. S. 380, 400-403 (1895). But if disbursement of the award is delayed, the owner is entitled to interest thereon sufficient to ensure that he is placed in as good a position pecuniarily as he would have occupied if the payment had coincided with the appropriation. 14 Other measures of “just compensation” are employed only “when market value [is] too difficult to find, or when its application would result in manifest injustice to owner or public. ...” United States v. Commodities Trading Corp., 339 U. S. 121, 123 (1950). 15 We have acknowledged that, in some cases, this standard fails fully to indemnify the owner for his loss. Particularly when property has some special value to its owner because of its adaptability to his particular use, the fair-market-value measure does not make the owner whole. United States v. 564.54 Acres of Land, 441 U. S. 506, 511-512 (1979). We are willing to tolerate such occasional inequity because of the difficulty of assessing the value an individual places upon a particular piece of property and because of the need for a clear, easily administrable rule governing the measure of “just compensation.” Ibid. None of the discussion in this opinion is intended to modify either the manner in which the fair-market-value standard is interpreted and applied or the test for determining when the fair-market-value standard must be supplanted by other formulae, see n. 14, supra. In particular, we express no view on the question of how the value of land condemned under 40 U. S. C. § 257 should be assessed when activities of the Government during the pendency of the condemnation proceedings have so altered the condition of the property as to reduce the price it could fetch on the open market on the date of the taking. KIRBY FOREST INDUSTRIES, INC. v. UNITED STATES 11 1 Opinion of the Court Phelps n. United States, 274 U. S. 341, 344 (1927); Seaboard Air Line R. Co. v. United States, 261 U. S. 299, 306 (1923).16 From the foregoing it should be apparent that identification of the time a taking of a tract of land occurs is crucial to determination of the amount of compensation to which the owner is constitutionally entitled. The Government contends that, in straight-condemnation proceedings like that at issue here, the date of taking must be deemed the date the United States tenders payment to the owner of the land. The Government’s position is amply supported by prior decisions by this Court and by indications of congressional intent derivable from the structure of the pertinent statutory scheme and the governing procedural rule. In Danforth v. United States, supra, we were called upon to determine the date on which the Government, in an exercise of its eminent domain power under the Flood Control Act of 1928, ch. 569, 45 Stat. 534, as amended, 33 U. S. C. §702a et seq., appropriated the petitioner’s property. We held that, “[u]nless a taking has occurred previously in actuality or by a statutory provision . . . , we are of the view that the taking in a condemnation suit under this statute takes place upon the payment of the money award by the condemnor.” 308 U: S., at 284.17 In response to the contention 16 The last-mentioned principle underlies the provision in 40 U. S. C. § 258a for the payment of interest on any difference between the estimated value of land appropriated through a declaration of taking and its subsequently adjudicated actual value as of that date. See supra, at 5. The principle also underlies several decisions by Courts of Appeals, holding that the six percent rate of interest prescribed by § 258a is not a ceiling on the amount that can and must be paid by the Government. See, e. g., United States v. 329.73 Acres of Land, 704 F. 2d 800, 812, and n. 18 (CA5 1983) (en banc). The United States has acquiesced in those decisions. Brief for United States 14, n. 13. 17 Petitioner’s contention that our decision in Danforth pertained only to takings effected pursuant to the Flood Control Act is unpersuasive. Though the Flood Control Act contained a provision (analogous to 40 U. S. C. § 258a) empowering the United States to appropriate land expeditiously by filing a special petition and depositing an estimated award, 12 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. that such a procedure was unfair, we observed, “‘[t]he owner is protected by the rule that title does not pass until compensation has been ascertained and paid . . . .’” Id., at 284-285 (quoting Albert Hanson Lumber Co. v. United States, 261 U. S. 581, 587 (1923)). That all straight-condemnation proceedings under §257 should operate in the fashion described in Danforth is strongly suggested by the structure of Rule 71A, which now governs the administration of the statute. Rule 71A(i) permits the United States to dismiss a condemnation suit at any time before “compensation has been determined and paid,” unless the Government previously has “acquired the title or a lesser interest ... or taken possession.”18 The Government’s capacity to withdraw from the proceeding in this fashion would be difficult to explain if a taking were effectuated prior to tendering of payment. Finally, Congress’ understanding that a taking does not occur until the termination of condemnation proceedings brought under §257 is reflected in its adoption of §258a for the purpose of affording the Government the option of peremptorily appropriating land prior to final judgment, thereby permitting immediate occupancy and improvement of the property.19 Such an option would have been superfluous if, as ch. 569, § 4, 45 Stat. 536 (incorporating by reference § 5 of the River and Harbor Act of 1918, ch. 155, 40 Stat. 911), when the Government appropriated the land at issue in Danforth, it apparently did not invoke its special statutory authority but instead took the property in the usual fashion as authorized by 40 U. S. C. § 257. The holding of the case is thus on point. 18 After commencement of the valuation hearing, the Government may dismiss the suit only pursuant to a stipulation with the owner, Fed. Rule Civ. Proc. 71A(i)(2), or with the approval of the district court, Fed. Rule Civ. Proc. 71A(i)(3). The Rule does not suggest that a court order dismissing a suit has the effect of nullifying a taking that has already occurred. Indeed, to the contrary, the Rule forbids the district court to dismiss an action (without awarding just compensation) if the Government has acquired any “interest” in the property. Ibid. 19 See n. 3, supra. KIRBY FOREST INDUSTRIES, INC. v. UNITED STATES 13 1 Opinion of the Court petitioner contends, a taking occurred upon the filing of the complaint in a § 257 suit.20 Petitioner’s principal objection to the position advocated by the Government is that such a reading of § 257 and Rule 71A is precluded by the Fifth Amendment. Petitioner contends that, at least when the subject of a straight-condemnation proceeding is unimproved land, the owner is effectively deprived of all of the significant interests associated with ownership long before the Government tenders payment. The filing of a complaint in condemnation and a notice of lis pendens, petitioner contends, has the effect of preventing the owner of unimproved land thereafter from making any profitable use of it, or of selling it to another private party. At the same time, the owner remains liable for property taxes.21 Such a thoroughgoing abrogation of the owner’s rights, petitioner submits, surely constitutes a taking as soon as the abrogation is effective, regardless of when the land is officially appropriated under the terms of the statute. If petitioner’s depiction of the impairment of its beneficial interests during the pendency of the condemnation suit were 20 It must be admitted that the adoption of § 258a does not compel the conclusion that Congress in 1931 understood that the taking in a §257 suit did not occur until the date payment was tendered by the condemnor, because § 258a by its terms only empowers the Government to file a declaration of taking prior to “judgment.” The language of §258a is thus consistent with a congressional understanding that the taking occurred upon entry of final judgment in a straight-condemnation action. However, the fact that Congress did not empower the Government to file a declaration of taking anytime prior to the tender of payment does not undercut our construction of §257, because the Government has no need of special authority to appropriate land after judgment and before payment in a straight-condemnation suit; after entry of judgment, the Government can acquire the land merely by paying the owner the adjudicated value of the property. 21 Cf. United States v. 15.65 Acres of Land, 689 F. 2d, at 1334 (arguing that the initiation of a condemnation action leaves “[t]he owner of unimproved land . . . with the liabilities which follow title but none of the benefits, save the right ultimately to be paid for the taking”). 14 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. accurate, we would find its constitutional argument compelling. We have frequently recognized that a radical curtailment of a landowner’s freedom to make use of or ability to derive income from his land may give rise to a taking within the meaning of the Fifth Amendment, even if the Government has not physically intruded upon the premises or acquired a legal interest in the property. Thus, we have acknowledged that a taking would be effected by a zoning ordinance that deprived “an owner [of] economically viable use of his land.” Agins v. Tiburon, 447 U. S. 255, 260 (1980). And we have suggested that, under some circumstances, a land-use regulation that severely interfered with an owner’s “distinct investment-backed expectations” might precipitate a taking. Penn Central Transportation Co. v. New York City, 438 U. S. 104, 124 (1978). The principle that underlies this doctrine is that, while most burdens consequent upon government action undertaken in the public interest must be borne by individual landowners as concomitants of “The advantage of living and doing business in a civilized community,’”22 some are so substantial and unfor-seeable, and can so easily be identified and redistributed, that “justice and fairness” require that they be borne by the public as a whole.23 These considerations are as applicable to the problem of determining when in a condemnation proceeding the taking occurs as they are to the problem of ascertaining whether a taking has been effected by a putative exercise of the police power. However, we do not find, prior to the payment of the condemnation award in this case, an interference with petition- 22 Andrus v. Allard, 444 U. S. 51, 67 (1979) (quoting Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 422 (1922) (Brandeis, J., dissenting)). 23 See Agins v. Tiburon, 447 U. S. 255, 260-262 (1980); Penn Central Transportation Co. v. New York City, 438 U. S. 104, 123-128 (1978); Armstrong v. United States, 364 U. S. 40, 49 (1960); Pennsylvania Coal Co. v. Mahon, supra, at 413, 415-416; Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law, 80 Harv. L. Rev. 1165, 1214-1224 (1967). KIRBY FOREST INDUSTRIES, INC. v. UNITED STATES 15 1 Opinion of the Court er’s property interests severe enough to give rise to a taking under the foregoing theory. Until title passed to the United States, petitioner was free to make whatever use it pleased of its property. The Government never forbade petitioner to cut the trees on the land or to develop the tract in some other way. Indeed, petitioner is unable to point to any statutory provision that would have authorized the Government to restrict petitioner’s usage of the property prior to payment of the award.24 Nor did the Government abridge petitioner’s right to sell the land if it wished. It is certainly possible, as petitioner contends, that the initiation of condemnation proceedings, publicized by the filing of a notice of lis pendens, reduced the price that the land would have fetched, but impairment of the market value of real property incident to otherwise legitimate government action ordinarily does not result in a taking. See, e. g., Agins v. Tiburon, supra, at 263, n. 9; Danforth v. United States, 308 U. S., at 285; Euclid v. Ambler Realty Co., 272 U. S. 365 (1926). At least in the absence of an interference with an owner’s legal right to dispose of his land,25 even a substantial reduction of the attractiveness of the property to potential purchasers does not entitle the owner to compensation under the Fifth Amendment. It is true that any effort by petitioner to develop the land probably would have prompted the Government to exercise its authority, under 40 U. S. C. §258a, to file a declaration of 24 The question of the Government’s authority to dictate to petitioner the manner in which it could use the land is preeminently a question of law, not of fact. Thus, we find no merit in petitioner’s contention that the Court of Appeals erred in not adhering to the strictures of Federal Rule of Civil Procedure 52(a) when examining the District Court’s finding that the Government denied petitioner economically viable use of the land during the pendency of the suit. 25 We have no occasion here to determine whether abrogation of an owner’s right to sell real property, combined with a sufficiently substantial diminution of its utility to the owner, would give rise a taking. Cf. Andrus n. Allard, supra, at 66-68. 16 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. taking and thereby peremptorily to appropriate the tract in order to protect it from alteration. But the likelihood that the United States would have responded in that fashion to an attempt by petitioner to make productive use of the land weakens rather than strengthens petitioner’s position, because it suggests that petitioner had the option, at any time, to precipitate an immediate taking of the land and to obtain compensation therefor as of that date, merely by informing the Government of its intention to cut down the trees. We conclude, in sum, that petitioner has failed to demonstrate that its interests were impaired in any constitutionally significant way before the Government tendered payment and acquired title in the usual course.26 Accordingly, we approve the finding of the Court of Appeals that the taking of petitioner’s land occurred on March 26, 1982. Because the award was paid on that date, no interest was due thereon. Ill The foregoing conclusion does not dispose of this case. We still must determine whether the award itself satisfied the strictures of the Fifth Amendment. As indicated above, petitioner is constitutionally entitled to the fair market value of its property on the date of the taking. See supra, at 10. Petitioner points out that $2,331,202 represents the commission’s best estimate of the value of the land on March 6, 1979. To the extent that that figure is less than the value of the land on March 26, 1982, the date of the taking, petitioner contends, it has been denied just compensation. The Government attempts to meet this objection by emphasizing the pragmatic constraints on determination of the value of real property. The Government contends that it is imperative that the trier of fact in a condemnation action be given a fixed date as of which the value of the land is to be assessed. At the time of trial, no one knows when the 26 Had petitioner made such a showing, complex questions would have arisen regarding the measure of “just compensation.” We defer resolution of those questions to a case in which they are fairly presented. KIRBY FOREST INDUSTRIES, INC. v. UNITED STATES 17 1 Opinion of the Court United States will exercise its option to purchase the property, so adoption of the date of payment as the date of valuation is infeasible. Moreover, prediction of the value of land at a future time is notoriously difficult. Under these circumstances, courts and commissions understandably have adopted the convention of using the date of the commencement of the trial as the date of the valuation. The Government’s argument provides a plausible explanation for the valuation procedure used in this case and other cases, but it does not meet petitioner’s constitutional claim. However reasonable it may be to designate the date of trial as the date of valuation, if the result of that approach is to provide the owner substantially less than the fair market value of his property on the date the United States tenders payment, it violates the Fifth Amendment. We are left with the problem of prescribing a solution to this difficulty. Petitioner suggests that we mandate an award of interest, at least for the period from the date of valuation to the date of the taking, as a rough proxy for the increase in the value of the land during that period. We decline the invitation. Change in the market value of particular tracts of land over time bears only a tenuous relationship to the market rate of interest. Some parcels appreciate at rates far in excess of the interest rate; others decline in value.27 Thus, to require the Government to pay interest on the basis proposed by petitioner would only sometimes improve the fit between the value of condemned land on the date of its appropriation and the amount paid to the owner of such land. Solution of the problem highlighted by petitioner requires, not a rule compelling payment of interest by the Government, but rather a procedure for modifying a condemnation 27 For example, it appears that the market value of timberland of the sort owned by petitioner was much higher in March 1979 than in March 1982. See Vardaman’s Green Sheet, Index of Pine Sawtimber Stumpage and Timberland Prices (Jan. 15, 1983), reprinted in App. to Brief for United States la. 18 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. award when there is a substantial delay between the date of valuation and the date the judgment is paid, during which time the value of the land changes materially. In the case before us, such a procedure is readily available. In view of the inadequacy of the commission’s explanation for its valuation of petitioner’s land, the Court of Appeals remanded for reconsideration of the value of the property. On remand, the District Court can easily adduce evidence pertaining to alteration in the value of petitioner’s tract between March 6, 1979, and March 26, 1982.28 In our view, such a reassessment is both necessary and sufficient to provide petitioner just compensation. In other cases, such an option may not be available. However, the Federal Rules of Civil Procedure contain a procedural device that could do tolerable service in this cause. Rule 60(b) empowers a federal court, upon motion of a party, to withdraw or amend a final order for “any . . . reason justifying relief from the operation of the judgment.” This provision seems to us expansive enough to encompass a motion, by the owner of condemned land, to amend a condemnation award. The evidence adduced in consideration of such a motion would be very limited. The parties would not be permitted to question the adjudicated value of the tract as of the date of its original valuation; they would be limited to the presentation of evidence and arguments on the issue of how the market value of the property altered between that date and the date on which the judgment was paid by the Government. So focused, the consideration of such a motion would be expeditious and relatively inexpensive for the a Though the value of timberland of the kind contained in petitioner’s tract seems to have declined during this period, see n. 27, supra, petitioner contends that the value of its parcel nevertheless increased because of the expansion of the residential areas surrounding nearby Beaumont, Tex., and the susceptibility of the parcel to rural subdivision or recreational usage. The District Court can and should assess these contentions on remand. KIRBY FOREST INDUSTRIES, INC. v. UNITED STATES 19 1 Opinion of the Court parties involved.29 Further refinement of this procedural option we leave to the courts called upon to administer it.30 IV For the reasons set forth above, we agree with the Court of Appeals that no interest was due on the condemnation award paid to petitioner. Petitioner’s meritorious contention that it is constitutionally entitled to the value of its land on the date of the taking, not on the date of the valuation, can be accommodated by allowing petitioner, on remand, to present evidence pertaining to change in the market value of the tract during the period between those two dates. On the understanding that petitioner will be afforded that opportunity, the judgment is Affirmed. 29 The procedure would not be free, of course, but that fact may well have a healthy effect in deterring frivolous pleas for relief from final judgments. That he would be obliged to bear some litigation costs in contesting a Rule 60(b) motion should dissuade a landowner from filing such a motion unless he had good reason to believe that the value of his property changed materially between valuation and payment. 30 We do not mean to suggest that the constitutional difficulty discussed in this section can be solved only by affording a condemnee in petitioner’s position an opportunity to file a motion to amend the judgment under Rule 60(b). Either Congress or a lower court might perceive a more easily ad-ministrable way of ensuring that the compensation paid to the owner of condemned land does not fall substantially below the fair market value of the property on the date of the taking. 20 OCTOBER TERM, 1983 Syllabus 467 U. S. SEATTLE TIMES CO., DBA THE SEATTLE TIMES, ET AL. V. RHINEHART ET AL. CERTIORARI TO THE SUPREME COURT OF WASHINGTON No. 82-1721. Argued February 21, 1984—Decided May 21, 1984 Respondent Rhinehart is the spiritual leader of a religious group, respondent Aquarian Foundation. In recent years, petitioner newspaper companies published several stories about Rhinehart and the Foundation. A damages action for alleged defamation and invasions of privacy was brought in a Washington state court by respondents (who also include certain members of the Foundation) against petitioners (who also include the authors of the articles and their spouses). During the course of extensive discovery, respondents refused to disclose certain information, including the identity of the Foundation’s donors and members. Pursuant to state discovery Rules modeled on the Federal Rules of Civil Procedure, the trial court issued an order compelling respondents to identify all donors who made contributions during the five years preceding the date of the complaint, along with the amounts donated. The court also required respondents to divulge enough membership information to substantiate any claims of diminished membership. However, pursuant to the State’s Rule 26(c), the court also issued a protective order prohibiting petitioners from publishing, disseminating, or using the information in any way except where necessary to prepare for and try the case. In seeking the protective order, respondents had submitted affidavits of several Foundation members averring that public release of the information would adversely affect Foundation membership and income and would subject its members to harassment and reprisals. By its terms, the protective order did not apply to information gained by means other than the discovery process. The Washington Supreme Court affirmed both the production order and the protective order, concluding that even if the latter order was assumed to constitute a prior restraint of free expression, the trial court had not violated its discretion in issuing the order. Held: The protective order issued in this case does not offend the First Amendment. Pp. 29-37. (a) In addressing the First Amendment question presented here, it is necessary to consider whether the “practice in question [furthers] an important or substantial governmental interest unrelated to the suppression of expression” and whether “the limitation of First Amendment SEATTLE TIMES CO. v. RHINEHART 21 20 Syllabus freedoms [is] no greater than is necessary or essential to the protection of the particular governmental interest involved.” Procunier v. Martinez, 416 U. S. 396, 413. Pp. 31-32. (b) Judicial limitations on a party’s ability to disseminate information discovered in advance of trial implicates the First Amendment rights of the restricted party to a far lesser extent than would restraints on dissemination of information in other contexts. Rules authorizing discovery are a matter of legislative grace. A litigant has no First Amendment right of access to information made available only for purposes of trying his suit. Furthermore, restraints placed on discovered information are not a restriction on a traditionally public source of information. Pp. 32-34. (c) Rule 26(c) furthers a substantial governmental interest unrelated to the suppression of expression. Liberal pretrial discovery under the State’s Rules has a significant potential for abuse. There is an opportunity for litigants to obtain—incidentally or purposefully—information that not only is irrelevant but if publicly released could be damaging to reputation and privacy. The prevention of such abuse is sufficient justification for the authorization of protective orders. Pp. 34-36. (d) The provision for protective orders in the Washington Rules—conferring broad discretion on the trial court—requires, in itself, no heightened First Amendment scrutiny. The unique character of the discovery process requires that the trial court have substantial latitude to fashion protective orders. P. 36. (e) In this case, the trial court entered the protective order upon a showing that constituted good cause as required by Rule 26(c). Also, the order is limited to the context of pretrial civil discovery, and does not restrict dissemination if the information is obtained from other sources. It is sufficient for purposes of this Court’s decision that the highest court in the State found no abuse of discretion in the trial court’s decision to issue a protective order pursuant to a constitutional state law. Pp. 36-37. 98 Wash. 2d 226, 654 P. 2d 673, affirmed. Powell, J., delivered the opinion for a unanimous Court. Brennan, J., filed a concurring opinion, in which Marshall, J., joined, post, p. 37. Evan L. Schwab argued the cause for petitioners. With him on the briefs were P. Cameron DeVore and Bruce E. H. Johnson. 22 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. Malcolm L. Edwards argued the cause for respondents. With him on the brief was Charles K. Wiggins* Justice Powell delivered the opinion of the Court. This case presents the issue whether parties to civil litigation have a First Amendment right to disseminate, in advance of trial, information gained through the pretrial discovery process. I Respondent Rhinehart is the spiritual leader of a religious group, the Aquarian Foundation. The Foundation has fewer than 1,000 members, most of whom live in the State of Washington. Aquarian beliefs include life after death and the ability to communicate with the dead through a medium. Rhinehart is the primary Aquarian medium. In recent years, the Seattle Times and the Walla Walla Union-Bulletin have published stories about Rhinehart and the Foundation. Altogether 11 articles appeared in the newspapers during the years 1973, 1978, and 1979. The five articles that appeared in 1973 focused on Rhinehart and the manner in which he operated the Foundation. They described seances conducted by Rhinehart in which people paid him to put them in touch with deceased relatives and friends. The articles also stated that Rhinehart had sold magical “stones” that had been “expelled” from his body. One article referred to Rhinehart’s conviction, later vacated, for sodomy. The four articles that appeared in 1978 concentrated on an “extravaganza” sponsored by Rhinehart at the Walla Walla State Penitentiary. The articles stated that he had treated 1,100 inmates to a 6-hour-long show, during which he gave away between $35,000 and $50,000 in cash and prizes. One article described a “chorus line of girls [who] shed their *James C. Goodale, John G. Koeltl, Burt Neubome, Charles S. Sims, W. Terry Maguire, Anthony Epstein, Erwin G. Krasnow, Bruce W. Sanford, J. Laurent Scharff, Richard M. Schmidt, Jr., and Donald F. Luke filed a brief for the American Civil Liberties Union et al. as amici curiae. SEATTLE TIMES CO. v. RHINEHART 23 20 Opinion of the Court gowns and bikinis and sang . . . .” App. 25a. The two articles that appeared in 1979 referred to a purported connection between Rhinehart and Lou Ferrigno, star of the popular television program, “The Incredible Hulk.” II Rhinehart brought this action in the Washington Superior Court on behalf of himself and the Foundation against the Seattle Times, the Walla Walla Union-Bulletin, the authors of the articles, and the spouses of the authors. Five female members of the Foundation who had participated in the presentation at the penitentiary joined the suit as plaintiffs.1 The complaint alleges that the articles contained statements that were “fictional and untrue,” and that the defendants— petitioners here—knew, or should have known, they were false. According to the complaint, the articles “did and were calculated to hold [Rhinehart] up to public scorn, hatred and ridicule, and to impeach his honesty, integrity, virtue, religious philosophy, reputation as a person and in his profession as a spiritual leader.” Id., at 8a. With respect to the Foundation, the complaint also states: “[T]he articles have, or may have had, the effect of discouraging contributions by the membership and public and thereby diminished the financial ability of the Foundation to pursue its corporate purposes.” Id., at 9a. The complaint alleges that the articles misrepresented the role of the Foundation’s “choir” and falsely implied that female members of the Foundation had “stripped off all their clothes and wantonly danced naked . . . .” Id., at 6a. The complaint requests $14,100,000 in damages for the alleged defamation and invasions of privacy.2 1 The record is unclear as to whether all five of the female plaintiffs participated in the “chorus line” described in the 1978 articles. The record also does not disclose whether any of the female plaintiffs were mentioned by name in the articles. 2 Although the complaint does not allege specifically that the articles caused a decline in membership of the Foundation, respondents’ answers to petitioners’ interrogatories raised this issue. In response to petitioners’ 24 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. Petitioners filed an answer, denying many of the allegations of the complaint and asserting affirmative defenses.3 Petitioners promptly initiated extensive discovery. They deposed Rhinehart, requested production of documents pertaining to the financial affairs of Rhinehart and the Foundation, and served extensive interrogatories on Rhinehart and the other respondents. Respondents turned over a number of financial documents, including several of Rhinehart’s income tax returns. Respondents refused, however, to disclose certain financial information,4 the identity of the Foundation’s donors during the preceding 10 years, and a list of its members during that period. Petitioners filed a motion under the State’s Civil Rule 37 requesting an order compelling discovery.5 In their supporting memorandum, petitioners recognized that the principal issue as to discovery was respondents’ “refusa[l] to permit any effective inquiry into their financial affairs, such as the source of their donations, their financial transactions, uses of request that respondents explain the damages they are seeking, respondents claimed that the Foundation had experienced a drop in membership in Hawaii and Washington “from about 300 people to about 150 people, and [a] concurrent drop in contributions.” Record 503. 3 Affirmative defenses included contentions that the articles were substantially true and accurate, that they were privileged under the First and Fourteenth Amendments, that the statute of limitations had run as to the 1973 articles, that the individual respondents had consented to any invasions of privacy, and that respondents had no reasonable expectation of privacy when performing before 1,100 prisoners. 4 Rhinehart also refused to reveal the current address of his residence. He submitted an affidavit stating that he had relocated out of fear for his safety and that disclosure of his current address would subject him to risks of bodily harm. Petitioners promptly moved for an order compelling Rhinehart to give his address and the trial court granted the motion. 5 Washington Superior Court Civil Rule 37 provides in relevant part: “A party, upon reasonable notice to other parties and all persons affected thereby, may apply to the court in the county where the deposition was taken, or in the county where the action is pending, for an order compelling discovery . . . .” SEATTLE TIMES CO. v. RHINEHART 25 20 Opinion of the Court their wealth and assets, and their financial condition in general.” Record 350. Respondents opposed the motion, arguing in particular that compelled production of the identities of the Foundation’s donors and members would violate the First Amendment rights of members and donors to privacy, freedom of religion, and freedom of association. Respondents also moved for a protective order preventing petitioners from disseminating any information gained through discovery. Respondents noted that petitioners had stated their intention to continue publishing articles about respondents and this litigation, and their intent to use information gained through discovery in future articles. In a lengthy ruling, the trial court initially granted the motion to compel and ordered respondents to identify all donors who made contributions during the five years preceding the date of the complaint, along with the amounts donated. The court also required respondents to divulge enough membership information to substantiate any claims of diminished membership. Relying on In re Halkin, 194 U. S. App. D. C. 257, 598 F. 2d 176 (1979),6 the court refused to issue a protective order. It stated that the facts alleged by respondents in support of their motion for such an order were too conclusory to warrant a finding of “good cause” as re 6 The Halkin decision was debated by the courts below. Prior to Halkin, the only Federal Court of Appeals to consider the question directly had understood that the First Amendment did not affect a trial court’s authority to restrict dissemination of information produced during pretrial discovery. See International Products Corp. v. Koons, 325 F. 2d 403, 407-408 (CA2 1963). Halkin considered the issue at length. Characterizing a protective order as a “paradigmatic prior restraint,” Halkin held that such orders require close scrutiny. The court also held that before a court should issue a protective order that restricts expression, it must be satisfied that “the harm posed by dissemination must be substantial and serious; the restraining order must be narrowly drawn and precise; and there must be no alternative means of protecting the public interest which intrudes less directly on expression.” 194 U. S. App. D. C., at 272, 598 F. 2d, at 191 (footnotes omitted). 26 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. quired by Washington Superior Court Civil Rule 26(c).7 The court stated, however, that the denial of respondents’ motion was “without prejudice to [respondents’] right to move for a protective order in respect to specifically described discovery materials and a factual showing of good cause for restraining defendants in their use of those materials.” Record 16. Respondents filed a motion for reconsideration in which they renewed their motion for a protective order. They submitted affidavits of several Foundation members to support their request. The affidavits detailed a series of letters and telephone calls defaming the Foundation, its members, and Rhinehart—including several that threatened physical harm to those associated with the Foundation. The affiants also described incidents at the Foundation’s headquarters involving attacks, threats, and assaults directed at Foundation members by anonymous individuals and groups. In general, the affidavits averred that public release of the donor lists would adversely affect Foundation membership and income 7 Rule 26(c) provides: “Protective Orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the county where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition after being sealed be opened only by order of the court; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court. ...” Rule 26(c) is typical of the provisions adopted in many States. SEATTLE TIMES CO. v. RHINEHART 27 20 Opinion of the Court and would subject its members to additional harassment and reprisals. Persuaded by these affidavits, the trial court issued a protective order covering all information obtained through the discovery process that pertained to “the financial affairs of the various plaintiffs, the names and addresses of Aquarian Foundation members, contributors, or clients, and the names and addresses of those who have been contributors, clients, or donors to any of the various plaintiffs.” App. 65a. The order prohibited petitioners from publishing, disseminating, or using the information in any way except where necessary to prepare for and try the case. By its terms, the order did not apply to information gained by means other than the discovery process.8 In an accompanying opinion, the trial court recognized that the protective order would restrict petitioners’ right to publish information obtained by discovery, but the court reasoned that the restriction was necessary to avoid the “chilling effect” that dissemination would have on “a party’s willingness to bring his case to court.” Record 63. Respondents appealed from the trial court’s production order, and petitioners appealed from the protective order. 8 The relevant portions of the protective order state: “2. Plaintiffs’ motion for a protective order is granted with respect to information gained by the defendants through the use of all of the discovery processes regarding the financial affairs of the various plaintiffs, the names and addresses of Aquarian Foundation members, contributors, or clients, and the names and addresses of those who have been contributors, clients, or donors to any of the various plaintiffs. “3. The defendants and each of them shall make no use of and shall not disseminate the information defined in paragraph 2 which is gained through discovery, other than such use as is necessary in order for the discovering party to prepare and try the case. As a result, information gained by a defendant through the discovery process may not be published by any of the defendants or made available to any news media for publication or dissemination. This protective order has no application except to information gained by the defendants through the use of the discovery processes.” App. 65a. 28 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. The Supreme Court of Washington affirmed both. 98 Wash. 2d 226, 654 P. 2d 673 (1982). With respect to the protective order, the court reasoned: “Assuming then that a protective order may fall, ostensibly, at least, within the definition of a ‘prior restraint of free expression’, we are convinced that the interest of the judiciary in the integrity of its discovery processes is sufficient to meet the ‘heavy burden’ of justification. The need to preserve that integrity is adequate to sustain a rule like CR 26(c) which authorizes a trial court to protect the confidentiality of information given for purposes of litigation.” Id., at 256, 654 P. 2d, at 690.9 The court noted that “[t]he information to be discovered concerned the financial affairs of the plaintiff Rhinehart and his organization, in which he and his associates had a recognizable privacy interest; and the giving of publicity to these matters would allegedly and understandably result in annoyance, embarrassment and even oppression.” Id., at 256-257, 654 P. 2d, at 690. Therefore, the court concluded, the trial court had not abused its discretion in issuing the protective order.10 The Supreme Court of Washington recognized that its holding conflicts with the holdings of the United States Court ’Although the Washington Supreme Court assumed, arguendo, that a protective order could be viewed as an infringement on First Amendment rights, the court also stated: “A persuasive argument can be made that when persons are required to give information which they would otherwise be entitled to keep to themselves, in order to secure a government benefit or perform an obligation to that government, those receiving that information waive the right to use it for any purpose except those which are authorized by the agency of government which exacted the information.” 98 Wash. 2d, at 239, 654 P. 2d, at 681. 10 The Washington Supreme Court also held that, because the protective order shields respondents from “abuse of the discovery privilege,” respondents could not object to the order compelling production. We do not consider here that aspect of the Washington Supreme Court’s decision. SEATTLE TIMES CO. v. RHINEHART 29 20 Opinion of the Court of Appeals for the District of Columbia Circuit in In re Halkin, 194 U. S. App. D. C. 257, 598 F. 2d 176 (1979),11 and applies a different standard from that of the Court of Appeals for the First Circuit in In re San Juan Star Co., 662 F. 2d 108 (1981).12 We granted certiorari to resolve the conflict.13 464 U. S. 812 (1983). We affirm. Ill Most States, including Washington, have adopted discovery provisions modeled on Rules 26 through 37 of the Federal Rules of Civil Procedure. F. James & G. Hazard, Civil Procedure 179 (1977).14 Rule 26(b)(1) provides that a party “may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.” It further provides that discovery is not limited to matters that will be admissible at trial so long as the information sought “appears reasonably calculated to lead to the dis 11 See n. 6, supra. 12 In San Juan Star, the Court of Appeals for the First Circuit considered and rejected Halkin’s approach to the constitutionality of protective orders. Although the San Juan court held that protective orders may implicate First Amendment interests, the court reasoned that such interests are somewhat lessened in the civil discovery context. The court stated: “In general, then, we find the appropriate measure of such limitations in a standard of ‘good cause’ that incorporates a ‘heightened sensitivity’ to the First Amendment concerns at stake . . . .” 662 F. 2d, at 116. 13 The holding of the Supreme Court of Washington is consistent with the decision of the Court of Appeals for the Second Circuit in International Products Corp. v. Koons, 325 F. 2d, at 407-408. 14 See Bushman v. New Holland Division, 83 Wash. 2d 429, 433, 518 P. 2d 1078, 1080 (1974). The Washington Supreme Court has stated that when the language of a Washington Rule and its federal counterpart are the same, courts should look to decisions interpreting the Federal Rule for guidance. American Discount Corp. v. Saratoga West, Inc., 81 Wash. 2d 34, 37-38, 499 P. 2d 869, 871 (1972). The Washington Rule that provides for the scope of civil discovery and the issuance of protective orders is virtually identical to its counterpart in the Federal Rules of Civil Procedure. Compare Wash. Super. Ct. Civ. Rules 26(b) and (c) with Fed. Rules Civ. Proc. 26(b) and (c). 30 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. covery of admissible evidence.” Wash. Super. Ct. Civ. Rule 26(b)(1); Trust Fund Services v. Aro Glass Co., 89 Wash. 2d 758, 763, 575 P. 2d 716, 719 (1978); cf. 8 C. Wright & A. Miller, Federal Practice and Procedure §2008 (1970).15 The Rules do not differentiate between information that is private or intimate and that to which no privacy interests attach. Under the Rules, the only express limitations are that the information sought is not privileged, and is relevant to the subject matter of the pending action. Thus, the Rules often allow extensive intrusion into the affairs of both litigants and third parties.16 If a litigant fails to comply with a request for discovery, the court may issue an order directing compliance that is enforceable by the court’s contempt powers. Wash. Super. Ct. Civ. Rule 37(b).17 Petitioners argue that the First Amendment imposes strict limits on the availability of any judicial order that has the 15 Washington Superior Court Civil Rule 26(b)(1), identical to Federal Rule of Civil Procedure 26(b)(1) in effect at the time, provides in full: “In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” 16 Under Rules 30 and 31, a litigant may depose a third party by oral or written examination. The litigant can compel the third party to be deposed and to produce tangible evidence at the deposition by serving the third party with a subpoena pursuant to Rule 45. Rule 45(b)(1) authorizes a trial court to quash or modify a subpoena of tangible evidence “if it is unreasonable and oppressive.” Rule 45(f) provides: “Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court from which the subpoena issued.” 17 In addition to its contempt power, Rule 37(b)(2) authorizes a trial court to enforce an order compelling discovery by other means including, for example, regarding designated facts as established for purposes of the action. Cf. Fed. Rule Civ. Proc. 37(b)(2)(A). SEATTLE TIMES CO. v. RHINEHART 31 •20 Opinion of the Court effect of restricting expression. They contend that civil discovery is not different from other sources of information, and that therefore the information is “protected speech” for First Amendment purposes. Petitioners assert the right in this case to disseminate any information gained through discovery. They do recognize that in limited circumstances, not thought to be present here, some information may be restrained. They submit, however: “When a protective order seeks to limit expression, it may do so only if the proponent shows a compelling governmental interest. Mere speculation and conjecture are insufficient. Any restraining order, moreover, must be narrowly drawn and precise. Finally, before issuing such an order a court must determine that there are no alternatives which intrude less directly on expression.” Brief for Petitioners 10. We think the rule urged by petitioners would impose an unwarranted restriction on the duty and discretion of a trial court to oversee the discovery process. IV It is, of course, clear that information obtained through civil discovery authorized by modern rules of civil procedure would rarely, if ever, fall within the classes of unprotected speech identified by decisions of this Court. In this case, as petitioners argue, there certainly is a public interest in knowing more about respondents. This interest may well include most—and possibly all—of what has been discovered as a result of the court’s order under Rule 26(b)(1). It does not necessarily follow, however, that a litigant has an unrestrained right to disseminate information that has been obtained through pretrial discovery. For even though the broad sweep of the First Amendment seems to prohibit all restraints on free expression, this Court has observed that “[f]reedom of speech . . . does not comprehend the right to speak on any subject at any time.” American Communications Assn. v. Douds, 339 U. S. 382, 394-395 (1950). 32 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. The critical question that this case presents is whether a litigant’s freedom comprehends the right to disseminate information that he has obtained pursuant to a court order that both granted him access to that information and placed restraints on the way in which the information might be used. In addressing that question it is necessary to consider whether the “practice in question [furthers] an important or substantial governmental interest unrelated to the suppression of expression” and whether “the limitation of First Amendment freedoms [is] no greater than is necessary or essential to the protection of the particular governmental interest involved.” Procunier v. Martinez, 416 U. S. 396, 413 (1974); see Brown v. Glines, 444 U. S. 348, 354-355 (1980); Buckley v. Valeo, 424 U. S. 1, 25 (1976). A At the outset, it is important to recognize the extent of the impairment of First Amendment rights that a protective order, such as the one at issue here, may cause. As in all civil litigation, petitioners gained the information they wish to disseminate only by virtue of the trial court’s discovery processes. As the Rules authorizing discovery were adopted by the state legislature, the processes thereunder are a matter of legislative grace. A litigant has no First Amendment right of access to information made available only for purposes of trying his suit. Zemel n. Rusk, 381 U. S. 1, 16-17 (1965) (“The right to speak and publish does not carry with it the unrestrained right to gather information”). Thus, continued court control over the discovered information does not raise the same specter of government censorship that such control might suggest in other situations. See In re Halkin, 194 U. S. App. D. C., at 287, 598 F. 2d, at 206-207 (Wilkey, J., dissenting).18 18 Although litigants do not “surrender their First Amendment rights at the courthouse door,” In re Halkin, 194 U. S. App. D. C., at 268, 598 F. 2d, at 186, those rights may be subordinated to other interests that arise in SEATTLE TIMES CO. v. RHINEHART 33 20 Opinion of the Court Moreover, pretrial depositions and interrogatories are not public components of a civil trial.19 Such proceedings were not open to the public at common law, Gannett Co. v. DePasquale, 443 U. S. 368, 389 (1979), and, in general, they are conducted in private as a matter of modem practice. See id., at 396 (Burger, C. J., concurring); Marcus, Myth and Reality in Protective Order Litigation, 69 Cornell L. Rev. 1 (1983). Much of the information that surfaces during pretrial discovery may be unrelated, or only tangentially related, to the underlying cause of action. Therefore, restraints placed on discovered, but not yet admitted, information are not a restriction on a traditionally public source of information. Finally, it is significant to note that an order prohibiting dissemination of discovered information before trial is not the kind of classic prior restraint that requires exacting First Amendment scrutiny. See Gannett Co. v. DePasquale, this setting. For instance, on several occasions this Court has approved restriction on the communications of trial participants where necessary to ensure a fair trial for a criminal defendant. See Nebraska Press Assn. v. Stuart, 427 U. S. 539, 563 (1976); id., at 601, and n. 27 (Brennan, J., concurring in judgment); Oklahoma Publishing Co. v. District Court, 430 U. S. 308, 310-311 (1977); Sheppard v. Maxwell, 384 U. S. 333, 361 (1966). “In the conduct of a case, a court often finds it necessary to restrict the free expression of participants, including counsel, witnesses, and jurors.” Gulf Oil Co. v. Bernard, 452 U. S. 89, 104, n. 21 (1981). 19 Discovery rarely takes place in public. Depositions are scheduled at times and places most convenient to those involved. Interrogatories are answered in private. Rules of Civil Procedure may require parties to file with the clerk of the court interrogatory answers, responses to requests for admissions, and deposition transcripts. See Fed. Rule Civ. Proc. 5(d). Jurisdictions that require filing of discovery materials customarily provide that trial courts may order that the materials not be filed or that they be filed under seal. See ibid.; Wash. Super. Ct. Civ. Rule 26(c). Federal district courts may adopt local rules providing that the fruits of discovery are not to be filed except on order of the court. See, e. g., C. D. Cal. Rule 8.3; S. D. N. Y. Civ. Rule 19. Thus, to the extent that courthouse records could serve as a source of public information, access to that source customarily is subject to the control of the trial court. 34 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. supra, at 399 (Powell, J., concurring). As in this case, such a protective order prevents a party from disseminating only that information obtained through use of the discovery process. Thus, the party may disseminate the identical information covered by the protective order as long as the information is gained through means independent of the court’s processes. In sum, judicial limitations on a party’s ability to disseminate information discovered in advance of trial implicates the First Amendment rights of the restricted party to a far lesser extent than would restraints on dissemination of information in a different context. Therefore, our consideration of the provision for protective orders contained in the Washington Civil Rules takes into account the unique position that such orders occupy in relation to the First Amendment. B Rule 26(c) furthers a substantial governmental interest unrelated to the suppression of expression. Procunier, supra, at 413. The Washington Civil Rules enable parties to litigation to obtain information “relevant to the subject matter involved” that they believe will be helpful in the preparation and trial of the case. Rule 26, however, must be viewed in its entirety. Liberal discovery is provided for the sole purpose of assisting in the preparation and trial, or the settlement, of litigated disputes. Because of the liberality of pretrial discovery permitted by Rule 26(b)(1), it is necessary for the trial court to have the authority to issue protective orders conferred by Rule 26(c). It is clear from experience that pretrial discovery by depositions and interrogatories has a significant potential for abuse.20 This abuse is not limited to 20 See Comments of the Advisory Committee on the 1983 Amendments to Fed. Rule Civ. Proc. 26, 28 U. S. C. App., pp. 729-730 (1982 ed., Supp. I). In Herbert v. Lando, 441 U. S. 153 (1979), the Court observed: “There have been repeated expressions of concern about undue and uncontrolled discovery, and voices from this Court have joined the chorus. But until and SEATTLE TIMES CO. v. RHINEHART 35 20 Opinion of the Court matters of delay and expense; discovery also may seriously implicate privacy interests of litigants and third parties.21 The Rules do not distinguish between public and private information. Nor do they apply only to parties to the litigation, as relevant information in the hands of third parties may be subject to discovery. There is an opportunity, therefore, for litigants to obtain— incidentally or purposefully—information that not only is irrelevant but if publicly released could be damaging to reputation and privacy. The government clearly has a substantial interest in preventing this sort of abuse of its processes. Cf. Herbert v. Lando, 441 U. S. 153, 176-177 (1979); Gumbel \. Pitkin, 124 U. S. 131, 145-146 (1888). As stated by Judge Friendly in International Products Corp. v. Koons, 325 F. 2d 403, 407-408 (CA2 1963), “[w]hether or not the Rule itself authorizes [a particular protective order] ... we have no question as to the court’s jurisdiction to do this under the inherent ‘equitable powers of courts of law over their own process, to prevent abuses, oppression, and injustices’ ” (citing Gumbel v. Pitkin, supra). The prevention of the abuse that can attend the coerced production of information under unless there are major changes in the present Rules of Civil Procedure, reliance must be had on what in fact and in law are ample powers of the district judge to prevent abuse.” Id., at 176-177 (footnote omitted); see also id., at 179 (Powell, J., concurring). But abuses of the Rules by litigants, and sometimes the inadequate oversight of discovery by trial courts, do not in any respect lessen the importance of discovery in civil litigation and the government’s substantial interest in protecting the integrity of the discovery process. 21 Cf. Whalen v. Roe, 429 U. S. 589, 599 (1977); Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 488-491 (1975). Rule 26(c) includes among its express purposes the protection of a “party or person from annoyance, embarrassment, oppression or undue burden or expense.” Although the Rule contains no specific reference to privacy or to other rights or interests that may be implicated, such matters are implicit in the broad purpose and language of the Rule. 36 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. a State’s discovery rule is sufficient justification for the authorization of protective orders.22 C We also find that the provision for protective orders in the Washington Rules requires, in itself, no heightened First Amendment scrutiny. To be sure, Rule 26(c) confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required. The Legislature of the State of Washington, following the example of the Congress in its approval of the Federal Rules of Civil Procedure, has determined that such discretion is necessary, and we find no reason to disagree. The trial court is in the best position to weigh fairly the competing needs and interests of parties affected by discovery.23 The unique character of the discovery process requires that the trial court have substantial latitude to fashion protective orders. V The facts in this case illustrate the concerns that justifiably may prompt a court to issue a protective order. As we have noted, the trial court’s order allowing discovery was extremely broad. It compelled respondents—among other 22 The Supreme Court of Washington properly emphasized the importance of ensuring that potential litigants have unimpeded access to the courts: “[A]s the trial court rightly observed, rather than expose themselves to unwanted publicity, individuals may well forgo the pursuit of their just claims. The judicial system will thus have made the utilization of its remedies so onerous that the people will be reluctant or unwilling to use it, resulting in frustration of a right as valuable as that of speech itself.” 98 Wash. 2d 226, 254, 654 P. 2d 673, 689 (1982). Cf. California Motor Transport Co. n. Trucking Unlimited, 404 U. S. 508, 510 (1972); NAACP v. Button, 371 U. S. 415, 429-431 (1963). 23 In addition, heightened First Amendment scrutiny of each request for a protective order would necessitate burdensome evidentiary findings and could lead to time-consuming interlocutory appeals, as this case illustrates. See, e. g., Zenith Radio Corp. v. Matsushita Electric Industrial Co., 529 F. Supp. 866 (ED Pa. 1981). SEATTLE TIMES CO. v. RHINEHART 37 20 Brennan, J., concurring things—to identify all persons who had made donations over a 5-year period to Rhinehart and the Aquarian Foundation, together with the amounts donated. In effect the order would compel disclosure of membership as well as sources of financial support. The Supreme Court of Washington found that dissemination of this information would “result in annoyance, embarrassment and even oppression.” 98 Wash. 2d, at 257, 654 P. 2d, at 690. It is sufficient for purposes of our decision that the highest court in the State found no abuse of discretion in the trial court’s decision to issue a protective order pursuant to a constitutional state law. We therefore hold that where, as in this case, a protective order is entered on a showing of good cause as required by Rule 26(c), is limited to the context of pretrial civil discovery, and does not restrict the dissemination of the information if gained from other sources, it does not offend the First Amendment.24 The judgment accordingly is Affirmed. Justice Brennan, with whom Justice Marshall joins, concurring. The Court today recognizes that pretrial protective orders, designed to limit the dissemination of information gained through the civil discovery process, are subject to scrutiny under the First Amendment. As the Court acknowledges, before approving such protective orders, “it is necessary to consider whether the ‘practice in question [furthers] an important or substantial governmental interest unrelated to the suppression of expression’ and whether ‘the limitation of First Amendment freedoms [is] no greater than is necessary or essential to the protection of the particular governmental 24 It is apparent that substantial government interests were implicated. Respondents, in requesting the protective order, relied upon the rights of privacy and religious association. Both the trial court and the Supreme Court of Washington also emphasized that the right of persons to resort to the courts for redress of grievances would have been “chilled.” See n. 22, supra. 38 OCTOBER TERM, 1983 Brennan, J., concurring 467 U. S. interest involved.’” Ante, at 32 (quoting Procunier v. Martinez, 416 U. S. 396, 413 (1974)). In this case, the respondents opposed discovery, and in the alternative sought a protective order for discovered materials, because the “compelled production of the identities of the Foundation’s donors and members would violate the First Amendment rights of members and donors to privacy, freedom of religion, and freedom of association.” Ante, at 25. The Supreme Court of Washington found that these interests constituted the requisite “good cause” under the State’s Rule 26(c) (upon “good cause shown,” the court may make “any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense”). 98 Wash. 2d 226, 256, 654 P. 2d 673, 690 (1982). Given this finding, the court approved a protective order limited to “information . . . regarding the financial affairs of the various [respondents], the names and addresses of Aquarian Foundation members, contributors, or clients, and the names and addresses of those who have been contributors, clients, or donors to any of the various [respondents].” Ante, at 27, n. 8. I agree that the respondents’ interests in privacy and religious freedom are sufficient to justify this protective order and to overcome the protections afforded free expression by the First Amendment. I therefore join the Court’s opinion. WALLER v. GEORGIA 39 Syllabus WALLER v. GEORGIA CERTIORARI TO THE SUPREME COURT OF GEORGIA No. 83-321. Argued March 27, 1984—Decided May 21, 1984* After court-authorized wiretaps of telephones by Georgia police revealed a large lottery operation, the police executed search warrants at numerous locations, including petitioners’ homes. Petitioners and others were then indicted for violating the Georgia Racketeer Influenced and Corrupt Organizations (RICO) Act and other state gambling statutes. Prior to trial, petitioners moved to suppress the wiretaps and evidence seized during the searches. The State moved to close the suppression hearing to the public, alleging that unnecessary “publication” of information obtained under the wiretaps would render the information inadmissible as evidence, and that the wiretap evidence would “involve” the privacy interests of some persons who were indicted but were not then on trial, and some who were not then indicted. The trial court agreed, finding that insofar as the wiretap evidence related to alleged offenders not then on trial, the evidence would be tainted and could not be used in future prosecutions. Accordingly, over petitioners’ objections, the court ordered the suppression hearing closed to all persons other than witnesses, court personnel, the parties, and the lawyers. The suppression hearing lasted seven days, but less than 2‘A hours were devoted to playing the tapes of the intercepted telephone conversations, and few of them mentioned or involved parties not then before the court. The case was then tried before a jury in open court, and petitioners were acquitted under the RICO Act but convicted under the other statutes. The Georgia Supreme Court affirmed. Held: 1. Under the Sixth Amendment, any closure of a suppression hearing over the objections of the accused must meet the following tests: the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced; the closure must be no broader than necessary to protect that interest; the trial court must consider reasonable alternatives to closing the hearing; and it must make findings adequate to support the closure. Cf. Press-Enterprise Co. v. Superior Court of California, 464 U. S. 501. Pp. 44-47. 2. Under the above tests, the closure of the entire suppression hearing here plainly was unjustified. The State’s proffer was not specific as *Together with No. 83-322, Cole et al. v. Georgia, also on certiorari to the same court. 40 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. to whose privacy interests might be infringed if the hearing were open to the public, what portions of the wiretap tapes might infringe those interests, and what portion of the evidence consisted of the tapes. As a result, the trial court’s findings were broad and general and did not purport to justify closure of the entire hearing. And the court did not consider alternatives to immediate closure of the hearing. Pp. 48-49. 3. The case is remanded to the state courts to decide what portions, if any, of a new suppression hearing may be closed to the public in light of conditions at the time of that hearing. A new trial need be held only if a new, public suppression hearing results in the suppression of material evidence not suppressed at the first trial or in some other material change in the positions of the parties. Pp. 49-50. 251 Ga. 124, 303 S. E. 2d 437, reversed and remanded. Powell, J., delivered the opinion for a unanimous Court. Herbert Shafer argued the cause for petitioners in both cases. With him on the briefs were Charles Lister, Charles R. Smith, Burt Neubome, and Charles S. Sims. Mary Beth Westmoreland, Assistant Attorney General of Georgia, argued the cause for respondent in both cases. With her on the brief were Michael J. Bowers, Attorney General, James P. Googe, Jr., Executive Assistant Attorney General, Marion 0. Gordon, First Assistant Attorney General, William B. Hill, Jr., Senior Assistant Attorney General, Lewis R. Slaton, and H. Allen Moye A Justice Powell delivered the opinion of the Court. These cases require us to decide the extent to which a hearing on a motion to suppress evidence may be closed to the public over the objection of the defendant consistently ^Fred E. Inbau, Wayne W. Schmidt, James P. Manak, David Crump, and Daniel B. Hales filed a brief for Americans for Effective Law Enforcement, Inc., et al. as amici curiae urging affirmance. Briefs of amici curiae were filed for the United States by Solicitor General Lee, Assistant Attorney General Trott, Deputy Solicitor General Frey, and Alan I. Horowitz; and for the State of Arizona by Robert K. Corbin, Attorney General. WALLER v. GEORGIA 41 39 Opinion of the Court with the Sixth and Fourteenth Amendment right to a public trial. I Acting under court authorization, Georgia police placed wiretaps on a number of phones during the last six months of 1981. The taps revealed a large lottery operation involved in gambling on the volume of stocks and bonds traded on the New York Stock Exchange. In early January 1982, law enforcement officers simultaneously executed search warrants at numerous locations, including the homes of petitioners. Petitioners and 35 others were indicted and charged with violating the Georgia Racketeer Influenced and Corrupt Organizations (Georgia RICO) Act, Ga. Code Ann. §§ 16-14-1 to 16-14-15 (1982 and Supp. 1983), and with commercial gambling and communicating gambling information in violation of Ga. Code Ann. §§ 16-12-22 and 16-12-28 (1982). Prior to the separate trial of petitioners and 13 other defendants, petitioners moved to suppress the wiretaps and the evidence seized during the searches. They asserted, inter alia, that the warrants authorizing the wiretaps were unsupported by probable cause and based on overly general information, that the taps were conducted without adequate supervision, and that the resulting searches were indiscriminate, “exploratory and general.” App. Ila. The State moved to close to the public any hearing on the motion to suppress. The closure motion stated that in order to validate the seizure of evidence derived from the wiretaps the State would have to introduce evidence “which [might] involve a reasonable expectation of privacy of persons other than” the defendants. Id., at 6a. On June 21, 1982, a jury was empaneled and then excused while the court heard the closure and suppression motions. The prosecutor argued that the suppression hearing should be closed because under the Georgia wiretap statute “[a]ny publication” of information obtained under a wiretap warrant 42 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. that was not “necessary and essential” would cause the information to be inadmissible as evidence. See Ga. Code Ann. § 16-ll-64(b)(8) (1982).1 The prosecutor stated that the evidence derived in the wiretaps would “involve” some persons who were indicted but were not then on trial, and some persons who were not then indicted. He said that if published in open court, the evidence “[might] very well be tainted.” App. 13a. The trial court agreed. It found that insofar as the wiretap evidence related to alleged offenders not then on trial, the evidence would be tainted and could not be used in future prosecutions. Id., at 14a. Over objection,2 the court ordered the suppression hearing closed to all persons other than witnesses, court personnel, the parties, and the lawyers. The suppression hearing lasted seven days. The parties do not dispute that less than 2V2 hours were devoted to playing tapes of intercepted telephone conversations. The intercepted conversations that were played included some persons who were not then on trial, but no one who had not been named in the indictment; one person who had not been 1 The statute barring publication is part of a section authorizing wiretaps pursuant to warrant. At the time of trial, the statute read: “Any publication of the information or evidence obtained under a warrant issued hereunder other than that necessary and essential to the preparation of and actual prosecution for the crime specified in the warrant shall be an unlawful invasion of privacy under this Chapter, and shall cause such evidence and information to be inadmissible in any criminal prosecution.” Ga. Code Ann. § 26-3004(k) (1977 and Supp. 1981) (subsequently recodified as § 16-ll-64(b)(8)). 2 Counsel for petitioners Waller, Thompson, Eula Burke, and W. B. Burke lodged an objection to closing the hearing. Counsel for petitioner Cole concurred in the prosecution’s motion to close the suppression hearing. App. 14a, 15a. Respondent argues that Cole is precluded from challenging the closure. The Georgia Supreme Court appears to have considered the objections of all the petitioners on their merits. 251 Ga. 124, 126-127, 303 S. E. 2d 437, 441 (1983). Cole’s claims in this Court are identical to those of the others. Since the cases must be remanded, we remand Cole’s case as well. The state courts may determine on remand whether Cole is procedurally barred from seeking relief as a matter of state law. WALLER v. GEORGIA 43 39 Opinion of the Court indicted was mentioned in the recorded calls. The remainder of the hearing concerned such matters as the procedures used in obtaining and executing the search warrants and wiretap authorizations, the procedures followed in preserving the tape recordings, and certain allegations of police and prosecutorial misconduct. Agreeing with the State’s concession that 10 boxes of documents seized during the searches were “personal, no[n]crime related,” Tr. of Suppression Hearing 635, the trial court ordered them suppressed, id., at 642; App. 19a. It refused to suppress a comparable amount of other material. The case was then tried to the jury in open court. Petitioners were acquitted of the charges under the Georgia RICO statute, but were convicted of commercial gambling and communicating gambling information. Prior to the trial of the remaining persons named in the indictment, the transcript of the suppression hearing was released to the public. The Georgia Supreme Court affirmed the convictions. 251 Ga. 124, 303 S. E. 2d 437 (1983). On the open-trial issue, the court ruled that the trial court had properly balanced petitioners’ rights to a public hearing against the privacy rights of others under Georgia law and the Sixth Amendment. Id., at 126-127, 303 S. E. 2d, at 441. We granted certiorari to decide whether the defendant’s Sixth Amendment right to a public trial applies to a suppression hearing. 464 U. S. 959 (1983). We hold that it does, and that the trial court failed to give proper weight to Sixth Amendment concerns. Accordingly, we reverse. II These cases present three questions: First, does the accused’s Sixth Amendment right to a public trial extend to a suppression hearing conducted prior to the presentation of evidence to the jury? Second, if so, was that right violated here? Third, if so, what is the appropriate remedy?3 3 Petitioners advance two Fourth Amendment arguments, both of which may be disposed of summarily. First, they assert that a forfeiture section 44 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. A This Court has not recently considered the extent of the accused’s right under the Sixth Amendment to insist upon a public trial, and has never considered the extent to which that right extends beyond the actual proof at trial. We are not, however, without relevant precedents. In several recent cases, the Court found that the press and public have a qualified First Amendment right to attend a criminal trial. Globe Newspaper Co. v. Superior Court for Norfolk County, of the Georgia RICO statute that authorizes certain warrantless seizures of all property used in or derived from a pattern of racketeering activity is facially invalid under the Fourth Amendment. See Ga. Code Ann. § 16-14-7(f) (1982 and Supp. 1983). We find that petitioners have not established that they have standing to challenge the statute in the present proceeding. It appears that all the evidence that was admitted at trial was seized under the authority of the search warrants, not pursuant to the statute. The opinion below is not to the contrary. The fact that the Georgia Supreme Court found standing does not permit us to avoid the responsibility of ensuring that our order will be other than advisory. Petitioners’ second Fourth Amendment challenge is that police so “flagrant[ly] disregard[ed]” the scope of the warrants in conducting the seizures at issue here that they turned the warrants into impermissible general warrants. Petitioners rely on lower court cases such as United States v. Heldt, 215 U. S. App. D. C. 206, 227, 668 F. 2d 1238, 1259 (1981) (per curiam), cert, denied sub nom. Hubbard v. United States, 456 U. S. 926 (1982), and United States v. Rettig, 589 F. 2d 418, 423 (CA9 1978), for the proposition that in such circumstances the entire fruits of the search, and not just those items as to which there was no probable cause to support seizure, must be suppressed. Petitioners do not assert that the officers exceeded the scope of the warrant in the places searched. Rather, they say only that the police unlawfully seized and took away items unconnected to the prosecution. The Georgia Supreme Court found that all items that were unlawfully seized were suppressed. In these circumstances, there is certainly no requirement that lawfully seized evidence be suppressed as well. See, e. g., Andresen n. Maryland, 427 U. S. 463, 482, n. 11 (1976); United States v. Offices Known As 50 State Distributing Co., 708 F. 2d 1371, 1376 (CA9 1983), cert, denied, 465 U. S. 1021 (1984); United States v. Tamura, 694 F. 2d 591, 597 (CA9 1982); United States v. Holmes, 452 F. 2d 249, 259 (CA7 1971). WALLER v. GEORGIA 45 39 Opinion of the Court 457 U. S. 596 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U. S. 555 (1980). We also have extended that right not only to the trial as such but also to the voir dire proceeding in which the jury is selected. Press-Enterprise Co. v. Superior Court of California, 464 U. S. 501 (1984). Moreover, in an earlier case in this line, Gannett Co. v. DePasquale, 443 U. S. 368 (1979), we considered whether this right extends to a pretrial suppression hearing. While the Court’s opinion did not reach the question, id., at 392, a majority of the Justices concluded that the public had a qualified constitutional right to attend such hearings, id., at 397 (Powell, J., concurring) (basing right on First Amendment); id., at 406 (Blackmun, J., joined by Brennan, White, and Marshall, JJ., dissenting in part) (basing right on Sixth Amendment). In each of these cases the Court has made clear that the right to an open trial may give way in certain cases to other rights or interests, such as the defendant’s right to a fair trial or the government’s interest in inhibiting disclosure of sensitive information. Such circumstances will be rare, however, and the balance of interests must be struck with special care. We stated the applicable rules in Press-Enterprise: “The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.” 464 U. S., at 510. Accord, Globe Newspaper Co., supra, at 606-607; Richmond Newspapers, supra, at 580-581 (opinion of Burger, C. J.); Gannett, 443 U. S., at 392-393 (semble); id., at 400-401 (Powell, J., concurring); id., at 440-446 (Blackmun, J., dissenting in part). 46 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. As noted, the analysis in these cases has proceeded largely under the First Amendment. Nevertheless, there can be little doubt that the explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit First Amendment right of the press and public. The central aim of a criminal proceeding must be to try the accused fairly, and “[o]ur cases have uniformly recognized the public-trial guarantee as one created for the benefit of the defendant.” Gannett, 443 U. S., at 380. “ ‘ “The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions . . . Ibid, (quoting In re Oliver, 333 U. S. 257, 270, n. 25 (1948), in turn quoting 1 T. Cooley, Constitutional Limitations 647 (8th ed. 1927)).4 In addition to ensuring that judge and prosecutor carry out their duties responsibly, a public trial encourages witnesses to come forward and discourages perjury. See In re Oliver, supra, at 270, n. 24; Douglas v. Wainwright, 714 F. 2d 1532, 1541 (CA111983), cert, pending, Nos. 83-817, 83-995; United States ex rel. Bennett v. Rundle, 419 F. 2d 599, 606 (CA3 1969). These aims and interests are no less pressing in a hearing to suppress wrongfully seized evidence. As several of the individual opinions in Gannett recognized, suppression hearings often are as important as the trial itself. 443 U. S., at 397, n. 1 (Powell, J., concurring); id., at 434-436 (Black- 4Accord, Estes v. Texas, 381 U. S. 532, 588 (1965) (Harlan, J., concurring) (“Essentially, the public-trial guarantee embodies a view of human nature, true as a general rule, that judges, lawyers, witnesses, and jurors will perform their respective functions more responsibly in an open court than in secret proceedings”); In re Oliver, 333 U. S., at 270 (“The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power”). WALLER v. GEORGIA 47 39 Opinion of the Court mun, J., dissenting in part); see also id., at 397 (Burger, C. J., concurring). In Gannett, as in many cases, the suppression hearing was the only trial, because the defendants thereafter pleaded guilty pursuant to a plea bargain. In addition, a suppression hearing often resembles a bench trial: witnesses are sworn and testify, and of course counsel argue their positions. The outcome frequently depends on a resolution of factual matters. See id., at 434 (Blackmun, J., dissenting in part). The need for an open proceeding may be particularly strong with respect to suppression hearings. A challenge to the seizure of evidence frequently attacks the conduct of police and prosecutor. As the Court of Appeals for the Third Circuit has noted, “[s]trong pressures are naturally at work on the prosecution’s witnesses to justify the propriety of their conduct in obtaining” the evidence. Rundle, supra, at 605. The public in general also has a strong interest in exposing substantial allegations of police misconduct to the salutary effects of public scrutiny.5 In sum, we hold that under the Sixth Amendment any closure of a suppression hearing over the objections of the accused must meet the tests set out in Press-Enterprise and its predecessors.6 6 To the extent there is an independent public interest in the Sixth Amendment public-trial guarantee, see Gannett, 443 U. S., at 383; cf. Globe Newspaper, 457 U. S., at 604, it applies with full force to suppression hearings. This case is an example. The defendants alleged that police conducted general searches and wholesale seizures in over 150 homes, and eavesdropped on more than 800 hours of telephone conversations by means of effectively unsupervised wiretaps. Cf. id., at 605 (First Amendment right of access to criminal trials “ensure[s] that [the] constitutionally protected ‘discussion of governmental affairs’ is an informed one”). 6 One of the reasons often advanced for closing a trial—avoiding tainting of the jury by pretrial publicity, e. g., Press-Enterprise, 464 U. S., at 510—is largely absent when a defendant makes an informed decision to object to the closing of the proceeding. In addition, that rationale is further attenuated where, as here, the jurors have been empaneled and instructed not to discuss the case or read or view press accounts of the matter. Tr. 238-239, 240-241, 293-294. Petitioners also make a claim to an open trial under the First Amendment. In view of our holding, there is no need to discuss that claim. 48 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. B Applying these tests to the cases at bar, we find the closure of the entire suppression hearing plainly was unjustified. Under Press-Enterprise, the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure. In this case, the only evidence about which the prosecutor expressed concern was the information derived from the wiretaps; he argued that unnecessary “publication” would render the taps inadmissible under the Georgia wiretap statute. App. 13a. The Georgia Supreme Court advanced the more general, but essentially identical, interest in protecting the privacy of persons not before the court. 251 Ga., at 126-127, 303 S. E. 2d, at 441. Under certain circumstances, these interests may well justify closing portions of a suppression hearing to the public. See Press-Enterprise, 464 U. S., at 511-512. Here, however, the State’s proffer was not specific as to whose privacy interests might be infringed, how they would be infringed, what portions of the tapes might infringe them, and what portion of the evidence consisted of the tapes. As a result, the trial court’s findings were broad and general, and did not purport to justify closure of the entire hearing.7 The court did not consider alternatives to immediate closure of the entire hearing: directing the government to provide more detail about its need for closure, in camera if necessary, and closing only those parts of the hearing that jeopar 7 The court’s only relevant finding was as follows: “If you plan to offer evidence, or if you are going to offer evidence that relates not only to those defendants not on trial but to other offenders, ... in my judgment insofar as they are concerned, it would amount to a publication and it would be tainted because of the publication.” App. 14a. WALLER v. GEORGIA 49 39 Opinion of the Court dized the interests advanced.8 As it turned out, of course, the closure was far more extensive than necessary. The tapes lasted only 2Vs hours of the 7-day hearing, and few of them mentioned or involved parties not then before the court. C The question that remains is what relief should be ordered to remedy this constitutional violation. Petitioners argue that a new trial on the merits should be ordered. The Solicitor General, appearing on behalf of the United States as amicus curiae, suggests that at most only a new suppression hearing be directed. The parties do not question the consistent view of the lower federal courts that the defendant should not be required to prove specific prejudice in order to obtain relief for a violation of the public-trial guarantee.9 We agree 8 The post hoc assertion by the Georgia Supreme Court that the trial court balanced petitioners’ right to a public hearing against the privacy rights of others cannot satisfy the deficiencies in the trial court’s record. The assertion finds little or no support in the record, and is itself too broad to meet the Press-Enterprise standard. 9 See, e. g., Douglas v. Wainwright, 714 F. 2d 1532, 1542 (CA11 1983) (citing cases), cert, pending, Nos. 83-817, 83-995. See also Levine v. United States, 362 U. S. 610, 627, n. (1960) (Brennan, J., dissenting) (“[T]he settled rule of the federal courts [is] that a showing of prejudice is not necessary for reversal of a conviction not had in public proceedings”). The general view appears to be that of the Court of Appeals for the Third Circuit. It noted in an en banc opinion that a requirement that prejudice be shown “would in most cases deprive [the defendant] of the [public-trial] guarantee, for it would be difficult to envisage a case in which he would have evidence available of specific injury.” United States ex rel. Bennett v. Rundle, 419 F. 2d 599, 608 (1969). While the benefits of a public trial are frequently intangible, difficult to prove, or a matter of chance, the Framers plainly thought them nonetheless real. See also State v. Sheppard, 182 Conn. 412,418,438 A. 2d 125,128 (1980) (“Because demonstration of prejudice in this kind of case is a practical impossibility, prejudice must necessarily be implied”); People v. Jones, 47 N. Y. 2d 409,416,391N. E. 2d 1335, 1340 (1979) (“The harmless error rule is no way to gauge the great, though intangible, societal loss that flows” from closing courthouse doors). 50 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. with that view, but we do not think it requires a new trial in this case. Rather, the remedy should be appropriate to the violation. If, after a new suppression hearing, essentially the same evidence is suppressed, a new trial presumably would be a windfall for the defendant, and not in the public interest. Cf. Goldberg v. United States, 425 U. S. 94, 111 (1976); Jackson n. Denno, 378 U. S. 368, 394-396 (1964). In these cases, it seems clear that unless the State substantially alters the evidence it presents to support the searches and wiretaps here, significant portions of a new suppression hearing must be open to the public. We remand to the state courts to decide what portions, if any, may be closed. This decision should be made in light of conditions at the time of the new hearing, and only interests that still justify closure should be considered. A new trial need be held only if a new, public suppression hearing results in the suppression of material evidence not suppressed at the first trial, or in some other material change in the positions of the parties. The judgments below are reversed, and the cases are remanded for further proceedings not inconsistent with this opinion. It is so ordered. HECKLER v. COMMUNITY HEALTH SERVICES 51 Syllabus HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES v. COMMUNITY HEALTH SERVICES OF CRAWFORD COUNTY, INC., ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 83-56. Argued February 27, 1984—Decided May 21, 1984 Under the Medicare program, providers of health care services are reimbursed for the reasonable cost of services rendered to Medicare beneficiaries and are required to submit annual cost reports which are audited to determine actual costs. The Secretary of Health and Human Services (Secretary) may reopen any reimbursement determination within a 3-year period and make appropriate adjustments^ Respondent nonprofit corporation (hereafter respondent), pursuant to its contract to provide home health care services under the Medicare program, received reimbursement through a fiscal intermediary, Travelers Insurance Cos. (Travelers). Respondent also received a federal grant under the Comprehensive Employment and Training Act (CETA), which authorized the use of federal funds to provide training and job opportunities for economically disadvantaged persons. This made it possible for respondent to take on additional personnel and to expand its home health care services. A regulation to prevent double reimbursement of providers’ costs indicated that grants received by a provider to pay special operating costs must be subtracted from the reasonable costs for which the provider may be reimbursed under the Medicare program. Respondent asked Travelers whether the salaries of its CETA-funded employees who provided services to Medicare patients were reimbursable as reasonable costs under Medicare, and was orally advised by Travelers’ Medicare manager that the CETA funds were “seed money” as defined in the Provider Reimbursement Manual to mean “[g]rants designated for the development of new health care agencies or for expansion of services of established agencies,” and that therefore, even though the CETA employees’ salaries constituted specific operating costs paid by a federal grant, they were reimbursable under the Medicare program. Relying on this advice, respondent included costs for which it was receiving CETA reimbursement in its cost reports for fiscal years 1975, 1976, and 1977, and received reimbursement for those sums. Eventually, however, Travelers, as it should have done previously, referred respondent’s inquiry to the Department of Health and Human Services, and was formally advised that the CETA funds were not “seed money” and thus had 52 OCTOBER TERM, 1983 Syllabus 467 U. S. to be subtracted from respondent’s Medicare reimbursement. Travelers then reopened respondent’s cost reports for the years in question and recomputed the reimbursable costs, determining that respondent had been overpaid $71,480. When Travelers demanded repayment of this amount, respondent filed suit in Federal District Court, but, after it had obtained temporary injunctive relief, the parties stipulated that the suit would be stayed pending administrative review. Thereafter, while rejecting the position that CETA funds were “seed money,” the Provider Reimbursement Review Board found that the Secretary’s right to recoup the 1975 overpayment was barred because Travelers had not given respondent a written notice of reopening within the 3-year limitation period, and accordingly reduced the amount in dispute. Respondent then filed another suit in the District Court seeking review of this determination. Consolidating the two suits, the court ruled in the Secretary’s favor, rejecting respondent’s claim that the Secretary ought to be estopped to deny that the CETA funds were “seed money” because of the representations of the Secretary’s agent, Travelers. The Court of Appeals reversed, holding that the Government may be estopped by the “affirmative misconduct” of its agents and that Travelers’ erroneous advice, coupled with its failure to refer the question to the Secretary, constituted such misconduct. Held: The Government is not estopped from recovering the funds in question from respondent, since respondent has not demonstrated that the traditional elements of an estoppel are present with respect to either its change in position or its reliance on Travelers’ advice. Pp. 59-66. (a) The consequences of the Government’s misconduct were not entirely adverse, since respondent did receive an immediate benefit as a result of the double reimbursement. Its detriment is the inability to retain money that it should never have received in the first place. Thus, this is not a case in which respondent has lost any legal right or suffered any adverse change in its status. Respondent cannot claim any right to expand its services to levels greater than those it would have provided had the error never occurred. Curtailment of operation does not justify an estoppel when the expansion of respondent’s operation was achieved through unlawful access to federal funds. Respondent cannot raise an estoppel without proving that it would be significantly worse off than if it had never obtained the CETA funds in question. Pp. 61-63. (b) The regulations governing the cost reimbursement provisions of Medicare should and did put respondent on ample notice of the care with which its cost reports must be prepared, and the care which would be taken to review them within the relevant 3-year period. Yet respondent prepared those reports on the basis of an oral policy judgment by an official who, it should have known, was not in the business of making HECKLER v. COMMUNITY HEALTH SERVICES 53 51 Opinion of the Court policy. That is not the kind of reasonable reliance that would even give rise to an estoppel against a private party and therefore cannot estop the Government. Pp. 63-66. 698 F. 2d 615, reversed and remanded. Stevens, J., delivered the opinion of the Court, in which Brennan, White, Marshall, Blackmun, Powell, and O’Connor, JJ., joined. Rehnquist, J., filed an opinion concurring in the judgment, in which Burger, C. J., joined, post, p. 66. Deputy Solicitor General Geller argued the cause for petitioner. With him on the briefs were Solicitor General Lee, Assistant Attorney General McGrath, Carolyn F. Corwin, William Kanter, and Richard A. Olderman. Raymond G. Hasley argued the cause for respondents. With him on the brief was Brian W. Ashbaugh * Justice Stevens delivered the opinion of the Court. Under what is recognized for present purposes as an incorrect interpretation of rather complex federal regulations, during 1975, 1976, and 1977 respondent received and expended $71,480 in federal funds to provide health care services to Medicare beneficiaries to which it was not entitled. The question presented is whether the Government is estopped from recovering those funds because respondent relied on the express authorization of a responsible Government agent in making the expenditures. I Under the Medicare program, Title XVIII of the Social Security Act, 79 Stat. 291, as amended, 42 U. S. C. §§ 1395-1395vv, providers of health care services are reimbursed for the reasonable cost of services rendered to Medicare beneficiaries as determined by the Secretary of Health and Human Services (Secretary). § 1395x(v)(l)(A). Providers receive interim payments at least monthly covering the cost of serv *Jack N. Goodman filed a brief for the National Association for Home Care et al. as amici curiae urging affirmance. 54 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. ices they have rendered. § 1395g(a). Congress recognized, however, that these interim payments would not always correctly reflect the amount of reimbursable costs, and accordingly instructed the Secretary to develop mechanisms for making appropriate retroactive adjustments when reimbursement is found to be inadequate or excessive. § 1395x(v)(l)(A)(ii)? Pursuant to this statutory mandate, the Secretary requires providers to submit annual cost reports which are then audited to determine actual costs. 42 CFR §§405.454, 405.1803 (1982). The Secretary may reopen any reimbursement determination within a 3-year period and make appropriate adjustments. § 405.1885. The Act also permits a provider to elect to receive reimbursement through a “fiscal intermediary.” 42 U. S. C. § 1395h; 42 CFR §421.103 (1982). If the intermediary the provider has nominated meets the Secretary’s requirements, the Secretary then enters into an agreement with the intermediary to have it perform those administrative responsibilities she assigns it. §§421.5, 421.110. These duties include receipt, disbursement, and accounting for funds used in making Medicare payments, auditing the records of providers in order to ensure payments have been proper, resolving disputes over cost reimbursement, reviewing and reconsidering payments to providers, and recovering overpayments to providers. §§ 421.100(b), (c), (e), (f), 421.120(e). The fiscal intermediary must also “serve as a center for, and communicate to providers, any information or instructions furnished to it by the Secretary, and serve as a channel of communication from providers to the Secretary.” 42 U. S. C. § 1395h(a)(2)(A). Respondent Community Health Services of Crawford County, Inc. (hereafter respondent), is a nonprofit corporation. In 1966 it entered into a contract with petitioner’s predecessor, the Secretary of Health, Education, and Welfare, to provide home health care services to individuals eligi- 1 Congress also authorized petitioner to adjust interim payments on account of previous overpayments or underpayments. § 1395g(a). HECKLER v. COMMUNITY HEALTH SERVICES 55 51 Opinion of the Court ble for benefits under Part A of the Medicare program, 42 U. S. C. §§ 1395c to 1395i— 2. Under the contract, respondent received reimbursement through a fiscal intermediary, the Travelers Insurance Cos. (Travelers). In 1973 Congress enacted the Comprehensive Employment and Training Act (CETA), 87 Stat. 839, codified, as amended, at 29 U. S. C. §801 et seq. (1976 ed. and Supp. V), and repealed, Pub. L. 97-300, 96 Stat. 1357, authorizing the use of federal funds to provide training and job opportunities for economically disadvantaged persons. In 1975 respondent began participating in the program, which reimbursed it for the salaries and fringe benefits paid to certain of its employees. CETA funds made it possible for respondent to take on additional personnel and to provide additional home health care services. To prevent what would be in effect double reimbursement of providers’ costs, one of the regulations concerning reasonable costs reimbursable under the Medicare program indicates that grants received by a provider in order to pay specific operating costs must be subtracted from the reasonable costs for which the provider may receive reimbursement.2 2 “(a) Principle. Unrestricted grants, gifts, and income from endowments should not be deducted from operating costs in computing reimbursable cost. Grants, gifts, or endowment income designated by a donor for paying specific operating costs should be deducted from the particular operating cost or group of costs. “(b) Definitions—(1) Unrestricted grants, gifts, income from endowment. Unrestricted grants, gifts, and income from endowments are funds, cash or otherwise, given to a provider without restriction by the donor as to their use. “(2) Designated or restricted grants, gifts, and income from endowments. Designated or restricted grants, gifts, and income from endowments are funds, cash or otherwise, which must be used only for the specific purpose designated by the donor. This does not refer to unrestricted grants, gifts, or income from endowments which have been restricted for a specific purpose by the provider. “(c) Application. (1) Unrestricted funds, cash or otherwise, are generally the property of the provider to be used in any manner its management 56 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. After obtaining a CETA grant, respondent’s administrator contacted Travelers to ask whether the salaries of its CETA-funded employees who provided services to patients eligible for Medicare benefits were reimbursable as reasonable costs under Medicare. Travelers’ Medicare manager orally advised respondent that the CETA funds were “seed money” within the meaning of § 612.2 of the Provider Reimbursement Manual, which is defined as “[g]rants designated for the development of new health care agencies or for expansion of services of established agencies,”3 and therefore, even though the CETA employees’ salaries constituted specific operating costs paid by a federal grant, they were reimbursable under the Medicare program. Relying on Travelers’ advice, respondent included costs for which it was receiving CETA reimbursement in its cost reports, and received reimbursement for those sums amounting deems appropriate and should not be deducted from operating costs. It would be inequitable to require providers to use the unrestricted funds to reduce the payments for care. The use of these funds is generally a means of recovering costs which are not otherwise recoverable. “(2) Donor-restricted funds which are designated for paying certain hospital operating expenses should apply and serve to reduce these costs or group of costs and benefit all patients who use services covered by the donation. If such costs are not reduced, the provider would secure reimbursement for the same expense twice; it would be reimbursed through the donor-restricted contributions as well as from patients and third-party payers including the title XVIII health insurance program. ” 42 CFR § 405.423 (1982) (emphasis supplied). 8 “Seed Money Grants.—Grants designated for the development of new health care agencies or for expansion of services of established agencies are generally referred to as ‘seed money’ grants. ‘Seed money’ grants are not deducted from costs in computing allowable costs. These grants are usually made to cover specific operating costs or group[s] of costs for services for a stated period of time. During this time, the provider will develop sufficient patient caseloads to enable continued self-sustaining operation with funds received from Medicare reimbursement as well as from funds received from other patients or other third-party payers.” Medicare Provider Reimbursement Manual, HIM-15, Pt. I, §612.2 (Aug. 1968), reproduced in 1 CCH, Medicare & Medicaid Guide 15461 (1983). HECKLER v. COMMUNITY HEALTH SERVICES 57 51 Opinion of the Court to $7,694, $32,460, and $31,326 in fiscal 1975, 1976, and 1977, respectively.4 On several occasions during this period, respondent requested and received from Travelers oral verification of the propriety of this treatment.5 With these additional funds, respondent expanded its annual number of home health care visits from approximately 4,000 in 1974 to over 81,000 in the next three years. Its annual budget increased during that period from about $200,000 to about $900,000. It is undisputed that correct administrative practice required Travelers to refer respondent’s inquiry to the Department of Health and Human Services for a definitive answer. However, Travelers did not do this until August 7, 1977, when a written request for instructions was finally submitted to the Philadelphia office of the Department’s Bureau of Health Insurance. Travelers was then formally advised that the CETA funds were not “seed money” and therefore had to be subtracted from respondent’s Medicare reimbursement. On October 7, 1977, Travelers formally notified respondent of this determination. Travelers then reopened respondent’s cost reports for the preceding three years and recomputed respondent’s reimbursable costs, determining that respondent had been overpaid a total of $71,480. In May 1978 Travelers made a formal demand for repayment of the disputed amount. Respondent filed suit and obtained temporary injunctive relief against the Secretary and Travelers; in November 1979, the parties entered into a 4 Presumably because CETA program participants provided services to some individuals not eligible for Medicare benefits, the aggregate amount of CETA reimbursements was substantially larger than the portion for which Medicare reimbursement was claimed. The total amount of reimbursement respondent received in CETA funds was $16,555, $53,952, and $81,118 in 1975, 1976, and 1977, respectively. 5 From its review of the record the Court of Appeals concluded that respondent had consulted Travelers and was advised that the CETA grants qualified as “seed money” on five separate occasions. However, the District Court made no finding as to the number of times that this advice was requested and received. 58 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. stipulation providing that the Secretary would postpone any attempts at recoupment and that the civil action would be stayed pending the outcome of administrative review. Thereafter, the Secretary’s Provider Reimbursement Review Board (PRRB) conducted a hearing and issued a written opinion rejecting the position that CETA funds were “seed money.” The PRRB found, however, that the Secretary’s right to recoup the 1975 overpayment was barred because Travelers had not given respondent a written notice of reopening within the 3-year limitations period;6 thus, the amount in dispute was reduced to approximately $63,800. On April 10, 1980, respondent filed a complaint in the District Court seeking review of the administrative determination. The District Court consolidated that case with the equitable action that had been filed about two years earlier. On crossmotions for summary judgment, the District Court ruled in favor of the Secretary, accepting the PRRB’s view of the Secretary’s regulations and rejecting respondent’s claim that the Secretary ought to be estopped to deny that the CETA grants were “seed money” because of the representations of her agent, Travelers. The District Court held that it was unreasonable for respondent to believe it could be in effect twice reimbursed for a given expense.7 The Court of Appeals reversed, reaching only the estoppel question. Community Health Services of Crawford County, Inc. v. Califano, 698 F. 2d 615 (CA3 1983). It held that the Government may be estopped by the “affirmative misconduct” of its agents and that Travelers’ erroneous advice coupled with its failure to refer the question to the Secretary constituted such misconduct. It rejected as “clearly erroneous” 6 The Board also found that the required written notice for 1976 had not been served on respondent, but noted that the Secretary still had time to comply with the notice requirement for that year. A timely notice for 1976 was thereafter served on respondent. 7 The District Court also held that Travelers was not independently liable to respondent for its incorrect advice. HECKLER v. COMMUNITY HEALTH SERVICES 59 51 Opinion of the Court the District Court’s finding that it was unreasonable for respondent to rely on Travelers’ advice, concluding instead that respondent acted reasonably because the relevant regulation had no clear meaning and respondent had no source other than Travelers to which it could turn for advice. II Estoppel is an equitable doctrine invoked to avoid injustice in particular cases. While a hallmark of the doctrine is its flexible application, certain principles are tolerably clear: “If one person makes a definite misrepresentation of fact to another person having reason to believe that the other will rely upon it and the other in reasonable reliance upon it does an act . . . the first person is not entitled “(b) to regain property or its value that the other acquired by the act, if the other in reliance upon the misrepresentation and before discovery of the truth has so changed his position that it would be unjust to deprive him of that which he thus acquired.” Restatement (Second) of Torts §894(1) (1979).8 Thus, the party claiming the estoppel must have relied on its adversary’s conduct “in such a manner as to change his position for the worse,”9 and that reliance must have been reasonable in that the party claiming the estoppel did not know nor should it have known that its adversary’s conduct was misleading.10 See Wilber National Bank v. United States, 294 U. S. 120, 124-125 (1935). 8 See also Restatement (Second) of Agency § 8B (1958). 9 3 J. Pomeroy, Equity Jurisprudence §805, p. 192 (S. Symons ed. 1941); see also id., § 812. 10 “The truth concerning these material facts must be unknown to the other party claiming the benefit of the estoppel, not only at the time of the conduct which amounts to a representation or concealment, but also at the time when that conduct is acted upon by him. If, at the time when he 60 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. When the Government is unable to enforce the law because the conduct of its agents has given rise to an estoppel, the interest of the citizenry as a whole in obedience to the rule of law is undermined. It is for this reason that it is well settled that the Government may not be estopped on the same terms as any other litigant.11 Petitioner urges us to expand this principle into a flat rule that estoppel may not in any circumstances run against the Government. We have left the issue open in the past,12 and do so again today. Though the arguments the Government advances for the rule are substantial, we are hesitant, when it is unnecessary to decide this case, to say that there are no cases in which the public interest in ensuring that the Government can enforce the law free from acted, such party had knowledge of the truth, or had the means by which with reasonable diligence he could acquire the knowledge so that it would be negligence on his part to remain ignorant by not using those means, he cannot claim to have been misled by relying upon the representation or concealment.” Id., §810, at 219 (footnote omitted). 11 See, e. g., INS v. Hibi, 414 U. S. 5, 8 (1973) (per curiam); Federal Crop Insurance Corp. v. Merrill, 332 U. S. 380, 383 (1947). 12 See INS v. Miranda, 459 U. S. 14, 19 (1982) (per curiam); Schweiker v. Hansen, 450 U. S. 785, 788 (1981) (per curiam); Montana n. Kennedy, 366 U. S. 308, 315 (1961). In fact, at least two of our cases seem to rest on the premise that when the Government acts in misleading ways, it may not enforce the law if to do so would harm a private party as a result of governmental deception. See United States v. Pennsylvania Industrial Chemical Corp., 411 U. S. 655, 670-675 (1973) (criminal defendant may assert as a defense that the Government led him to believe that its conduct was legal); Moser v. United States, 341 U. S. 41 (1951) (applicant cannot be deemed to waive right to citizenship on the basis of a form he signed when he was misled as to the effect signing would have on his rights). See also Kaiser Aetna v. United States, 444 U. S. 164, 178-180 (1979); Santobello v. New York, 404 U. S. 257 (1971); Branson y. Wirth, 17 Wall. 32, 42 (1873). This principle also underlies the doctrine that an administrative agency may not apply a new rule retroactively when to do so would unduly intrude upon reasonable reliance interests. See NLRB v. Bell Aerospace Co., 416 U. S. 267, 295 (1974); Atchison, T.&S.F.R. Co. v. Wichita Bd. of Trade, 412 U. S. 800, 807-808 (1973) (plurality opinion); SEC v. Chenery Corp., 332 U. S. 194, 203 (1947). HECKLER v. COMMUNITY HEALTH SERVICES 61 51 Opinion of the Court estoppel might be outweighed by the countervailing interest of citizens in some minimum standard of decency, honor, and reliability in their dealings with their Government.13 But however heavy the burden might be when an estoppel is asserted against the Government, the private party surely cannot prevail without at least demonstrating that the traditional elements of an estoppel are present. We are unpersuaded that that has been done in this case with respect to either respondent’s change in position or its reliance on Travelers’ advice. Ill To analyze the nature of a private party’s detrimental change in position, we must identify the manner in which reliance on the Government’s misconduct has caused the private citizen to change his position for the worse. In this case the consequences of the Government’s misconduct were not entirely adverse. Respondent did receive an immediate benefit as a result of the double reimbursement. Its detriment is the inability to retain money that it should never have received in the first place. Thus, this is not a case in which the respondent has lost any legal right, either vested or contin- 18 See generally St. Regis Paper Co. v. United States, 368 U. S. 208, 229 (1961) (Black, J., dissenting) (“Our Government should not by picayunish haggling over the scope of its promise, permit one of its arms to do that which, by any fair construction, the Government has given its word that no arm will do. It is no less good morals and good law that the Government should turn square corners in dealing with the people than that the people should turn square corners in dealing with their government”); Federal Crop Insurance Corp. v. Merrill, 332 U. S., at 387-388 (Jackson, J., dissenting) (“It is very well to say that those who deal with the Government should turn square corners. But there is no reason why the square corners should constitute a one-way street”); Brandt v. Hickel, 427 F. 2d 53, 57 (CA9 1970) (“To say to these appellants, ‘The joke is on you. You shouldn’t have trusted us,’ is hardly worthy of our great government”); Menges v. Dentler, 33 Pa. 495, 500 (1859) (“Men naturally trust in their government, and ought to do so, and they ought not to suffer for it”). See also Giglio v. United States, 405 U. S. 150, 154-155 (1972). 62 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. gent, or suffered any adverse change in its status.14 When a private party is deprived of something to which it was entitled of right, it has surely suffered a detrimental change in its position. Here respondent lost no rights but merely was induced to do something which could be corrected at a later time.15 There is no doubt that respondent will be adversely affected by the Government’s recoupment of the funds that it has already spent. It will surely have to curtail its operations and may even be forced to seek relief from its debts through bankruptcy. However, there is no finding as to the extent of the likely curtailment in the volume of services provided by respondent, much less that respondent will reduce its activities below the level that obtained when it was first advised that the double reimbursement was proper. Respondent may need an extended period of repayment or other modifications in the recoupment process if it is to continue to operate, but questions concerning the Government’s method of enforcing collection are not before us. The question is whether the Government has entirely forfeited its right to the money. A for-profit corporation could hardly base an estoppel on the fact that the Government wrongfully allowed it the interest-free use of taxpayers’ money for a period of two or three years, enabling it to expand its operation.16 No more can respondent claim any right to expand its services to levels greater than those it would have provided had the error never occurred. Curtailment of operation does not justify an estoppel when—by respondent’s own account—the expansion 14 This case is, therefore, plainly distinguishable from Moser v. United States, 341 U. S. 41 (1951), in which the petitioner “was led to believe that he would not thereby lose his rights to citizenship.” Id., at 46. 15 See Schweiker v. Hansen, 450 U. S., at 789 (per curiam). 16 See United States v. Stewart, 311 U. S. 60, 70 (1940); Sutton v. United States, 256 U. S. 575 (1921); Pine River Logging Co. v. United States, 186 U. S. 279, 291 (1902); Hart v. United States, 95 U. S. 316 (1877). See also Automobile Club v. Commissioner, 353 U. S. 180 (1957). HECKLER v. COMMUNITY HEALTH SERVICES 63 51 Opinion of the Court of its operation was achieved through unlawful access to governmental funds. And even if there will be a reduction below the service provided by respondent prior to its receipt of CETA funds, the record does not foreclose the possibility that the aggregate advantages to the community stemming from respondent’s use of the money have more than offset the actual hardship associated with now being required to restore these funds. Respondent cannot raise an estoppel without proving that it will be significantly worse off than if it had never obtained the CETA funds in question. IV Justice Holmes wrote: “Men must turn square corners when they deal with the Government.” Rock Island, A. & L. R. Co. v. United States, 254 U. S. 141, 143 (1920). This observation has its greatest force when a private party seeks to spend the Government’s money. Protection of the public fisc requires that those who seek public funds act with scrupulous regard for the requirements of law; respondent could expect no less than to be held to the most demanding standards in its quest for public funds. This is consistent with the general rule that those who deal with the Government are expected to know the law and may not rely on the conduct of Government agents contrary to law.17 17 “Whatever the form in which the Government functions, anyone entering into an arrangement with the Government takes the risk of having accurately ascertained that he who purports to act for the Government stays within the bounds of his authority. The scope of this authority may be explicitly defined by Congress or be limited by delegated legislation, properly exercised through the rule-making power. And this is so even though, as here, the agent himself may have been unaware of the limitations upon his authority.” Federal Crop Insurance Corp. v. Merrill, 332 U. S., at 384. See United States v. California, 332 U. S. 19, 39-40 (1947); United States v. Stewart, 311 U. S., at 70; United States v. San Francisco, 310 U. S. 16, 31-32 (1940); Wilber National Bank v. United States, 294 U. S. 120, 123-124 (1935); Utah v. United States, 284 U. S. 534, 545-546 (1932); Jeems Bayou Fishing & Hunting Club v. United States, 260 U. S. 561, 564 64 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. As a participant in the Medicare program, respondent had a duty to familiarize itself with the legal requirements for cost reimbursement. Since it also had elected to receive reimbursement through Travelers, it also was acquainted with the nature of and limitations on the role of a fiscal intermediary. When the question arose concerning respondent’s CETA funds, respondent’s own action in consulting Travelers demonstrates the necessity for it to have obtained an interpretation of the applicable regulations; respondent indisputably knew that this was a doubtful question not clearly covered by existing policy statements. The fact that Travelers’ advice was erroneous is, in itself, insufficient to raise an estoppel,18 as is the fact that the Secretary had not anticipated this problem and made a clear resolution available to respondent.19 There is simply no requirement that the Government anticipate every problem that may arise in the administration of a complex program such as Medicare; neither can it be expected to ensure that every bit of informal advice given by its agents in the course of such a program will be sufficiently reliable to justify expenditure of sums of money as substantial as those spent by respondent.20 Nor was the advice given under circumstances that should have induced respondent’s reliance. As a recipient of public funds well acquainted with the role of a fiscal intermediary, respondent knew Travelers only acted as a conduit; it could not resolve policy questions. The relevant statute, regulations, and Reimbursement Manual, with which respondent should have (1923); Sutton v. United States, 256 U. S., at 579; Utah Power & Light Co. n. United States, 243 U. S. 389, 409 (1917); Pine River Logging Co. v. United States, 186 U. S., at 291; Hart v. United States, 95 U. S., at 318-319; Gibbons v. United States, 8 Wall. 269, 274 (1869); Lee v. Munroe, 7 Cranch 366 (1813). 18 See Schweiker v. Hansen, 450 U. S., at 789-790 (per curiam); Montana v. Kennedy, 366 U. S. 308, 314-315 (1961). 19 See INS v. Miranda, 459 U. S. 14 (1982) (per curiam); INS v. Hibi, 414 U. S. 5 (1973) (per curiam). 20 See generally Schweiker v. Hansen, supra. HECKLER v. COMMUNITY HEALTH SERVICES 65 51 Opinion of the Court been and was acquainted, made that perfectly clear.21 Yet respondent made no attempt to have the question resolved by the Secretary; it was satisfied with the policy judgment of a mere conduit.22 The appropriateness of respondent’s reliance is further undermined because the advice it received from Travelers was oral. It is not merely the possibility of fraud that undermines our confidence in the reliability of official action that is not confirmed or evidenced by a written instrument. Written advice, like a written judicial opinion, requires its author to reflect about the nature of the advice that is given to the citizen, and subjects that advice to the possibility of review, criticism, and reexamination. The necessity for ensuring that governmental agents stay within the lawful scope of their authority, and that those who seek public funds act with scrupulous exactitude, argues strongly for the conclusion that an estoppel cannot be erected on the basis of the oral advice that underlay respondent’s cost reports. That is especially true when a complex program such as Medicare is involved, in which the need for written records is manifest. In sum, the regulations governing the cost reimbursement provisions of Medicare should and did put respondent on 21 Under the law of agency, a principal may be bound by the acts of an agent only if that agent acted with actual or apparent authority. Restatement (Second) of Agency §§ 145, 159 (1958). Travelers had neither with respect to the interpretation of the regulations in question. See also id., § 141, Comment b (principal may be estopped to deny lack of actual or apparent authority only when it negligently leads third parties to believe authority exists). 22 The Court of Appeals believed that respondent did all it could have done since it was unable to deal with the Secretary directly. However, that belief, even if accurate, would not make respondent’s reliance on Travelers’ policy judgment any more reasonable. Moreover, given the role of Travelers as a conduit for information, it is far from clear that had respondent specifically requested that Travelers pass on its question to the Department, Travelers would not have been under a duty to do so. Even if there were no such duty, there is nothing in the record to indicate that Travelers would have been unwilling to honor such a request. 66 OCTOBER TERM, 1983 Rehnquist, J., concurring in judgment 467 U. S. ample notice of the care with which its cost reports must be prepared, and the care which would be taken to review them within the relevant 3-year period. Yet respondent prepared those reports on the basis of an oral policy judgment by an official who, it should have known, was not in the business of making policy. That is not the kind of reasonable reliance that would even give rise to an estoppel against a private party. It therefore cannot estop the Government. Thus, assuming estoppel can ever be appropriately applied against the Government, it cannot be said that the detriment respondent faces is so severe or has been imposed in such an unfair way that petitioner ought to be estopped from enforcing the law in this case. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion. It is so ordered. Justice Rehnquist, with whom The Chief Justice joins, concurring in the judgment. I entirely agree with the Court that there was no estoppel in favor of respondent by reason of the Government’s conduct in this case, because even a private party under like circumstances would not have been estopped. I write separately because I think the Court’s treatment of our decided cases in this area gives an inaccurate and misleading impression of what those cases have had to say as to the circumstances, if any, under which the Government may be estopped to enforce the laws. Sixty-seven years ago, in Utah Power & Light Co. v. United States, 243 U. S. 389 (1917), private parties argued that they had acquired rights in federal lands, contrary to the law, because Government employees had acquiesced in their exercise of those rights. In that case the Court laid down the general principle governing claims of estoppel on behalf of private individuals against the Government: HECKLER v. COMMUNITY HEALTH SERVICES 67 51 Rehnquist, J., concurring in judgment “As a general rule, laches or neglect of duty on the part of officers of the Government is no defense to a suit by it to enforce a public right or protect a public interest. [Citations omitted.] And, if it be assumed that the rule is subject to exceptions, we find nothing in the cases in hand which fairly can be said to take them out of it as heretofore understood and applied in this court. A suit by the United States to enforce and maintain its policy respecting lands which it holds in trust for all the people stands upon a different plane in this and some other respects from the ordinary private suit to regain the title to real property or to remove a cloud from it. [Citation omitted.]” Id., at 409. Since then we have applied that principle in a case where a private party relied on the misrepresentation of a Government agency as to the coverage of a crop insurance policy, a misrepresentation which the Court agreed would have estopped a private insurance carrier. Federal Crop Insurance Corp. v. Merrill, 332 U. S. 380, 383-386 (1947). We have applied it in a case where a private party relied on a misrepresentation by a Government employee as to Social Security eligibility, a misrepresentation which resulted in the applicant’s losing 12 months of Social Security benefits. Schweiker v. Hansen, 450 U. S. 785 (1981) (per curiam). And we have applied it on at least three occasions to claims of estoppel in connection with the enforcement of the immigration laws and the denial of citizenship because of the conduct of immigration officials. INS v. Miranda, 459 U. S. 14 (1982) (per curiam); INS v. Hibi, 414 U. S. 5 (1973) (per curiam); Montana v. Kennedy, 366 U. S. 308, 314-315 (1961). In none of these cases have we ever held the Government to be estopped by the representations or conduct of its agents. In INS v. Hibi, supra, at 8, we noted that it is still an open question whether, in some future case, “affirmative misconduct” on the part of the Government might be grounds for an estoppel. See Montana v. Kennedy, supra, at 314-315. 68 OCTOBER TERM, 1983 Rehnquist, J., concurring in judgment 467 U. S. I agree with the Court that there is no need to decide in this case whether there are circumstances under which the Government may be estopped, but I think that the Court’s treatment of that question, ante, at 60-61, gives an impression of hospitality towards claims of estoppel against the Government which our decided cases simply do not warrant. In footnote 12, ante, at 60, the Court intimates that two of our decisions have allowed the Government to be estopped: United States v. Pennsylvania Industrial Chemical Corp., 411 U. S. 655 (1973), and Moser v. United States, 341 U. S. 41 (1951). But these cases are not traditional equitable estoppel cases. Pennsylvania Industrial Chemical Corp, was a criminal prosecution, and we held that “to the extent that [Government regulations] deprived [the defendant] of fair warning as to what conduct the Government intended to make criminal, we think there can be no doubt that traditional notions of fairness inherent in our system of criminal justice prevent the Government from proceeding with the prosecution.” 411 U. S., at 674. And the Court’s rather cryptic opinion in Moser, holding that an alien who declined to serve in the Armed Forces was not barred from United States citizenship pursuant to a federal statute, expressly rejected any doctrine of estoppel, and rested on the absence of a knowing and intentional waiver of the right to citizenship. 341 U. S., at 47. We do not write on a clean slate in this field, and our cases have left open the possibility of estoppel against the Government only in a rather narrow possible range of circumstances. Because I think the Court’s opinion, in its efforts to phrase new statements of the circumstances under which the Government may be estopped, casts doubt on these decided cases, I concur only in the judgment. HISHON v. KING & SPALDING 69 Syllabus HISHON v. KING & SPALDING CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 82-940. Argued October 31, 1983—Decided May 22, 1984 Petitioner, a woman lawyer, was employed in 1972 as an associate with respondent law firm, a general partnership, but her employment was terminated in 1979 after respondent decided not to invite her to become a partner. Petitioner filed a charge with the Equal Employment Opportunity Commission, claiming that respondent had discriminated against her on the basis of her sex in violation of Title VII of the Civil Rights Act of 1964. After the Commission issued a notice of right to sue, petitioner brought this action in Federal District Court under Title VIL Her complaint included allegations that respondent used the possibility of ultimate partnership as a recruiting device to induce her and other young lawyers to become associates at the firm; that respondent represented that advancement to partnership after five or six years was “a matter of course” for associates who received satisfactory evaluations and that associates would be considered for partnership “on a fair and equal basis”; that she relied on these representations when she accepted employment with respondent; that respondent’s promise to consider her on a “fair and equal basis” created a binding employment contract; and that respondent discriminated against her on the basis of her sex when it failed to invite her to become a partner. The District Court dismissed the complaint on the ground that Title VII was inapplicable to the selection of partners by a partnership, and the Court of Appeals affirmed. Held: Petitioner’s complaint states a claim cognizable under Title VII, and she therefore is entitled to her day in court to prove her allegations. Pp. 73-79. (a) Once a contractual employment relationship is established, the provisions of Title VII attach, forbidding unlawful discrimination as to the “terms, conditions, or privileges of employment,” which clearly include benefits that are part of the employment contract. If the evidence at trial establishes petitioner’s allegation that the parties contracted to have her considered for partnership, that promise clearly was a term, condition, or privilege of her employment. Independent of the alleged contract, Title VII would then bind respondent to consider petitioner for partnership as the statute provides, i.e., without regard to her sex. Moreover, an employer may provide its employees with benefits that it 70 OCTOBER TERM, 1983 Syllabus 467 U. S. is under no obligation to furnish by any express or implied contract. Such a benefit, though not a contractual right of employment, may qualify as a “privilege” of employment under Title VII that may not be granted or withheld in a discriminatory fashion. Pp. 73-76. (b) Even if respondent is correct in its assertion that a partnership invitation is not itself an offer of employment, Title VII would nonetheless apply. The benefit a plaintiff is denied need not be employment to fall within Title VIPs protection; it need only be a term, condition, or privilege of employment. It is also of no consequence that employment as an associate necessarily ends upon elevation to partnership; a benefit need not accrue before a person’s employment is completed to be a term, condition, or privilege of that employment relationship. Nor does the statute or its legislative history support a per se exemption of partnership decisions from scrutiny. And respondent has not shown how application of Title VII in this case would infringe its constitutional rights of expression or association. Moreover, “[i]nvidious private discrimination may be characterized as a form of exercising freedom of association protected by the First Amendment, but it has never been accorded affirmative constitutional protections.” Norwood v. Harrison, 413 U. S. 455, 470. Pp. 77-78. 678 F. 2d 1022, reversed and remanded. Burger, C. J., delivered the opinion for a unanimous Court. Powell, J., filed a concurring opinion, post, p. 79. Emmet J. Bondurant argued the cause and filed a brief for petitioner. Deputy Solicitor General Bator argued the cause for the United States as amicus curiae urging reversal. With him on the brief for the United States et al. were Solicitor General Lee, Assistant Attorney General Reynolds, David A. Strauss, Brian K. Landsberg, James W. Clute, and Philip B. Sklover. Charles Morgan, Jr., argued the cause for respondent. With him on the brief were J. Richard Cohen, Steven E. Vagle, Hamilton Lokey, and Gerald F. Handley * *Briefs of amici curiae urging reversal were filed for the American Association of University Women et al. by Judith I. Avner and Anne E. Simon; for the American Civil Liberties Union by Samuel EStreicher, HISHON v. KING & SPALDING 71 69 Opinion of the Court Chief Justice Burger delivered the opinion of the Court. We granted certiorari to determine whether the District Court properly dismissed a Title VII complaint alleging that a law partnership discriminated against petitioner, a woman lawyer employed as an associate, when it failed to invite her to become a partner. I A In 1972 petitioner Elizabeth Anderson Hishon accepted a position as an associate with respondent, a large Atlanta law firm established as a general partnership. When this suit was filed in 1980, the firm had more than 50 partners and employed approximately 50 attorneys as associates. Up to that time, no woman had ever served as a partner at the firm. Petitioner alleges that the prospect of partnership was an important factor in her initial decision to accept employment with respondent. She alleges that respondent used the possibility of ultimate partnership as a recruiting device to induce petitioner and other young lawyers to become associates at the firm. According to the complaint, respondent represented that advancement to partnership after five or six Burt Neubome, Isabelle Katz Pinzler, E. Richard Larson, Charles S. Sims, and Mary L. Heen; for the Anti-Defamation League of B’nai B’rith et al. by Justin J. Finger, Meyer Eisenberg, Jeffrey P. Sinensky, Leslie K. Shedlin, and Nathan Z. Dershowitz; for California Women Lawyers by Elizabeth S. Salveson; for the Dallas Association of Black Women Attorneys et al. by Neil H. Cogan; for the NAACP Legal Defense and Educational Fund, Inc., by Jack Greenberg, Charles S. Ralston, Gail J. Wright, and Elizabeth Bartholet; for the Women’s Bar Association of Illinois et al. by Paddy Harris McNamara, Susan N. Sekuler, and Jacqueline S. Lustig; for the Women’s Bar Association of Massachusetts by Leah Sprague Crothers; and for Robert Abrams et al. by Paulette M. Caldwell, Lawrence S. Robbins, and Barbara S. Schulman. Joseph D. Alviani filed a brief for the New England Legal Foundation as amicus curiae urging affirmance. 72 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. years was “a matter of course” for associates “who receive [d] satisfactory evaluations” and that associates were promoted to partnership “on a fair and equal basis.” Petitioner alleges that she relied on these representations when she accepted employment with respondent. The complaint further alleges that respondent’s promise to consider her on a “fair and equal basis” created a binding employment contract. In May 1978 the partnership considered and rejected Hishon for admission to the partnership; one year later, the partners again declined to invite her to become a partner.1 Once an associate is passed over for partnership at respondent’s firm, the associate is notified to begin seeking employment elsewhere. Petitioner’s employment as an associate terminated on December 31, 1979. B Hishon filed a charge with the Equal Employment Opportunity Commission on November 19, 1979, claiming that respondent had discriminated against her on the basis of her sex in violation of Title VII of the Civil Rights Act of 1964, 78 Stat. 241, as amended, 42 U. S. C. §2000e et seq. Ten days later the Commission issued a notice of right to sue, and on February 27, 1980, Hishon brought this action in the United States District Court for the Northern District of Georgia. She sought declaratory and injunctive relief, backpay, and compensatory damages “in lieu of reinstatement and promotion to partnership.” This, of course, negates any claim for specific performance of the contract alleged. The District Court dismissed the complaint on the ground that Title VII was inapplicable to the selection of partners 1 The parties dispute whether the partnership actually reconsidered the 1978 decision at the 1979 meeting. Respondent claims it voted not to reconsider the question and that Hishon therefore was required to file her claim with the Equal Employment Opportunity Commission within 180 days of the May 1978 meeting, not the meeting one year later, see 42 U. S. C. § 2000e-5(e). The District Court’s disposition of the case made it unnecessary to decide that question, and we do not reach it. HISHON v. KING & SPALDING 73 69 Opinion of the Court by a partnership.2 24 FEP Cases 1303 (1980). A divided panel of the United States Court of Appeals for the Eleventh Circuit affirmed. 678 F. 2d 1022 (1982). We granted certiorari, 459 U. S. 1169 (1983), and we reverse. II At this stage of the litigation, we must accept petitioner’s allegations as true. A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Conley v. Gibson, 355 U. S. 41, 45-46 (1957). The issue before us is whether petitioner’s allegations state a claim under Title VII, the relevant portion of which provides as follows: “(a) It shall be an unlawful employment practice for an employer— “(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e-2(a) (emphasis added). A Petitioner alleges that respondent is an “employer” to whom Title VII is addressed.3 She then asserts that consid 2 The District Court dismissed under Federal Rule of Civil Procedure 12(b)(1) on the ground that it lacked subject-matter jurisdiction over petitioner’s claim. Although limited discovery previously had taken place concerning the manner in which respondent was organized, the court did not find any “jurisdictional facts” in dispute. See Thomson v. Gaskill, 315 U. S. 442, 446 (1942). Its reasoning makes clear that it dismissed petitioner’s complaint on the ground that her allegations did not state a claim cognizable under Title VIL Our disposition makes it unnecessary to consider the wisdom of the District Court’s invocation of Rule 12(b)(1), as opposed to Rule 12(b)(6). 3 The statute defines an “employer” as a “person engaged in an industry affecting commerce who has fifteen or more employees for each working 74 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. eration for partnership was one of the “terms, conditions, or privileges of employment” as an associate with respondent.4 See § 2000e-2(a)(l). If this is correct, respondent could not base an adverse partnership decision on “race, color, religion, sex, or national origin.” Once a contractual relationship of employment is established, the provisions of Title VII attach and govern certain aspects of that relationship.5 In the context of Title VII, the contract of employment may be written or oral, formal or informal; an informal contract of employment may arise by the simple act of handing a job applicant a shovel and providing a workplace. The contractual relationship of employment triggers the provision of Title VII governing “terms, conditions, or privileges of employment.” Title VII in turn forbids discrimination on the basis of “race, color, religion, sex, or national origin.” Because the underlying employment relationship is contractual, it follows that the “terms, conditions, or privileges of employment” clearly include benefits that are part of an employment contract. Here, petitioner in essence alleges that respondent made a contract to consider her for partnership.6 Indeed, this promise was allegedly a key contractual day in each of twenty or more calendar weeks in the current or preceding calendar year,” § 2000e(b), and a “person” is explicitly defined to include “partnerships,” §2000e(a). The complaint alleges that respondent’s partnership satisfies these requirements. App. 6. 4 Petitioner has raised other theories of Title VII liability which, in light of our disposition, need not be addressed. 5 Title VII also may be relevant in the absence of an existing employment relationship, as when an employer refuses to hire someone. See § 2000e-2(a)(l). However, discrimination in that circumstance does not concern the “terms, conditions, or privileges of employment,” which is the focus of the present case. 6 Petitioner alleges not only that respondent promised to consider her for partnership, but also that it promised to consider her on a “fair and equal basis.” This latter promise is not necessary to petitioner’s Title VII claim. Even if the employment contract did not afford a basis for an implied condi HISHON v. KING & SPALDING 75 69 Opinion of the Court provision which induced her to accept employment. If the evidence at trial establishes that the parties contracted to have petitioner considered for partnership, that promise clearly was a term, condition, or privilege of her employment. Title VII would then bind respondent to consider petitioner for partnership as the statute provides, i. e., without regard to petitioner’s sex. The contract she alleges would lead to the same result. Petitioner’s claim that a contract was made, however, is not the only allegation that would qualify respondent’s consideration of petitioner for partnership as a term, condition, or privilege of employment. An employer may provide its employees with many benefits that it is under no obligation to furnish by any express or implied contract. Such a benefit, though not a contractual right of employment, may qualify as a “privileg[e]” of employment under Title VII. A benefit that is part and parcel of the employment relationship may not be doled out in a discriminatory fashion, even if the employer would be free under the employment contract simply not to provide the benefit at all. Those benefits that comprise the “incidents of employment,” S. Rep. No. 867, 88th Cong., 2d Sess., 11 (1964),7 or that form “an aspect of the relationship between the employer and employees,” Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., tion that the ultimate decision would be fairly made on the merits, Title VII itself would impose such a requirement. If the promised consideration for partnership is a term, condition, or privilege of employment, then the partnership decision must be without regard to “race, color, religion, sex, or national origin.” 7 Senate Report No. 867 concerned S. 1937, which the Senate postponed indefinitely after it amended a House version of what ultimately became the Civil Rights Act of 1964. See 110 Cong. Rec. 14602 (1964). The Report is relevant here because S. 1937 contained language similar to that ultimately found in the Civil Rights Act. It guaranteed “equal employment opportunity,” which was defined to “include all the compensation, terms, conditions, and privileges of employment.” S. Rep. No. 867, 88th Cong., 2d Sess., 24 (1964). 76 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. 404 U. S. 157, 178 (1971),8 may not be afforded in a manner contrary to Title VIL Several allegations in petitioner’s complaint would support the conclusion that the opportunity to become a partner was part and parcel of an associate’s status as an employee at respondent’s firm, independent of any allegation that such an opportunity was included in associates’ employment contracts. Petitioner alleges that respondent’s associates could regularly expect to be considered for partnership at the end of their “apprenticeships,” and it appears that lawyers outside the firm were not routinely so considered.9 Thus, the benefit of partnership consideration was allegedly linked directly with an associate’s status as an employee, and this linkage was far more than coincidental: petitioner alleges that respondent explicitly used the prospect of ultimate partnership to induce young lawyers to join the firm. Indeed, the importance of the partnership decision to a lawyer’s status as an associate is underscored by the allegation that associates’ employment is terminated if they are not elected to become partners. These allegations, if proved at trial, would suffice to show that partnership consideration was a term, condition, or privilege of an associate’s employment at respondent’s firm, and accordingly that partnership consideration must be without regard to sex. 8 Chemical & Alkali Workers pertains to §8(d) of the National Labor Relations Act (NLRA), which describes the obligation of employers and unions to meet and confer regarding “wages, hours, and other terms and conditions of employment.” 61 Stat. 142, as amended, 29 U. S. C. § 158(d). The meaning of this analogous language sheds light on the Title VII provision at issue here. We have drawn analogies to the NLRA in other Title VII contexts, see Franks y. Bowman Transportation Co., 424 U. S. 747, 768-770 (1976), and have noted that certain sections of Title VII were expressly patterned after the NLRA, see Albemarle Paper Co. v. Moody, 422 U. S. 405, 419 (1975). 9 Respondent’s own submissions indicate that most of respondent’s partners in fact were selected from the ranks of associates who had spent their entire prepartnership legal careers (excluding judicial clerkships) with the firm. See App. 45. HISHON v. KING & SPALDING 77 69 Opinion of the Court B Respondent contends that advancement to partnership may never qualify as a term, condition, or privilege of employment for purposes of Title VIL First, respondent asserts that elevation to partnership entails a change in status from an “employee” to an “employer.” However, even if respondent is correct that a partnership invitation is not itself an offer of employment, Title VII would nonetheless apply and preclude discrimination on the basis of sex. The benefit a plaintiff is denied need not be employment to fall within Title Vil’s protection; it need only be a term, condition, or privilege of employment. It is also of no consequence that employment as an associate necessarily ends when an associate becomes a partner. A benefit need not accrue before a person’s employment is completed to be a term, condition, or privilege of that employment relationship. Pension benefits, for example, qualify as terms, conditions, or privileges of employment even though they are received only after employment terminates. Arizona Governing Committee for Tax Deferred Annuity & Deferred Compensation Plans v. Norris, 463 U. S. 1073, 1079 (1983) (opinion of Marshall, J.). Accordingly, nothing in the change in status that advancement to partnership might entail means that partnership consideration falls outside the terms of the statute. See Lucido v. Cravath, Swaine & Moore, 425 F. Supp. 123, 128-129 (SDNY 1977). Second, respondent argues that Title VII categorically exempts partnership decisions from scrutiny. However, respondent points to nothing in the statute or the legislative history that would support such a per se exemption.10 When 10 The only legislative history respondent offers to support its position is Senator Cotton’s defense of an unsuccessful amendment to limit Title VII to businesses with 100 or more employees. In this connection the Senator stated: “[W]hen a small businessman who employs 30 or 25 or 26 persons selects an employee, he comes very close to selecting a partner; and when a businessman selects a partner, he comes dangerously close to the situation he faces 78 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. Congress wanted to grant an employer complete immunity, it expressly did so.11 Third, respondent argues that application of Title VII in this case would infringe constitutional rights of expression or association. Although we have recognized that the activities of lawyers may make a “distinctive contribution ... to the ideas and beliefs of our society,” NAACP v. Button, 371 U. S. 415, 431 (1963), respondent has not shown how its ability to fulfill such a function would be inhibited by a requirement that it consider petitioner for partnership on her merits. Moreover, as we have held in another context, “[i]n-vidious private discrimination may be characterized as a form of exercising freedom of association protected by the First Amendment, but it has never been accorded affirmative constitutional protections.” Norwood v. Harrison, 413 U. S. 455, 470 (1973). There is no constitutional right, for example, to discriminate in the selection of who may attend a private school or join a labor union. Runyon v. McCrary, 427 U. S. 160 (1976); Railway Mail Assn. v. Corsi, 326 U. S. 88, 93-94 (1945). Ill We conclude that petitioner’s complaint states a claim cognizable under Title VII. Petitioner therefore is entitled to when he selects a wife.” 110 Cong. Rec. 13085 (1964); accord, 118 Cong. Rec. 1524, 2391 (1972). Because Senator Cotton’s amendment failed, it is unclear to what extent Congress shared his concerns about selecting partners. In any event, his views hardly conflict with our narrow holding today: that in appropriate circumstances partnership consideration may qualify as a term, condition, or privilege of a person’s employment with an employer large enough to be covered by Title VIL 11 For example, Congress expressly exempted Indian tribes and certain agencies of the District of Columbia, 42 U. S. C. § 2000e(b)(l), small businesses and bona fide private membership clubs, § 2000e(b)(2), and certain employees of religious organizations, §2000e-l. Congress initially exempted certain employees of educational institutions, § 702, 78 Stat. 255, but later revoked that exemption, Equal Employment Opportunity Act of 1972, § 3, 86 Stat. 103. HISHON v. KING & SPALDING 79 69 Powell, J., concurring her day in court to prove her allegations. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Powell, concurring. I join the Court’s opinion holding that petitioner’s complaint alleges a violation of Title VII and that the motion to dismiss should not have been granted. Petitioner’s complaint avers that the law firm violated its promise that she would be considered for partnership on a “fair and equal basis” within the time span that associates generally are so considered.1 Petitioner is entitled to the opportunity to prove these averments. I write to make clear my understanding that the Court’s opinion should not be read as extending Title VII to the management of a law firm by its partners. The reasoning of the Court’s opinion does not require that the relationship among partners be characterized as an “employment” relationship to which Title VII would apply. The relationship among law partners differs markedly from that between employer and employee—including that between the partnership and its associates.2 The judgmental and sensitive decisions that must be made among the partners embrace a wide range of subjects.3 The essence of the law partnership is the common 1 Law firms normally require a period of associateship as a prerequisite to being eligible to “make” partner. This need not be an inflexible period, as firms may vary from the norm and admit to partnership earlier than, or subsequent to, the customary period of service. Also, as the complaint recognizes, many firms make annual evaluations of the performances of associates, and usually are free to terminate employment on the basis of these evaluations. 2 Of course, an employer may not evade the strictures of Title VII simply by labeling its employees as “partners.” Law partnerships usually have many of the characteristics that I describe generally here. 3 These decisions concern such matters as participation in profits and other types of compensation; work assignments; approval of commitments in bar association, civic, or political activities; questions of billing; accept 80 OCTOBER TERM, 1983 Powell, J., concurring 467 U. S. conduct of a shared enterprise. The relationship among law partners contemplates that decisions important to the partnership normally will be made by common agreement, see, e. g., Memorandum of Agreement, King & Spalding, App. 153-164 (respondent’s partnership agreement), or consent among the partners. Respondent contends that for these reasons application of Title VII to the decision whether to admit petitioner to the firm implicates the constitutional right to association. But here it is alleged that respondent as an employer is obligated by contract to consider petitioner for partnership on equal terms without regard to sex. I agree that enforcement of this obligation, voluntarily assumed, would impair no right of association.4 ance of new clients; questions of conflicts of interest; retirement programs; and expansion policies. Such decisions may affect each partner of the firm. Divisions of partnership profits, unlike shareholders’ rights to dividends, involve judgments as to each partner’s contribution to the reputation and success of the firm. This is true whether the partner’s participation in profits is measured in terms of points or percentages, combinations of salaries and points, salaries and bonuses, and possibly in other ways. 4 The Court’s opinion properly reminds us that “invidious private discrimination . . . has never been accorded affirmative constitutional protections.” Ante, at 78. This is not to say, however, that enforcement of laws that ban discrimination will always be without cost to other values, including constitutional rights. Such laws may impede the exercise of personal judgment in choosing one’s associates or colleagues. See generally Fallon, To Each According to His Ability, From None According to His Race: The Concept of Merit in the Law of Antidiscrimination, 60 Boston Univ. L. Rev. 815, 844-860 (1980). Impediments to the exercise of one’s right to choose one’s associates can violate the right of association protected by the First and Fourteenth Amendments. Cf. NAACP v. Button, 371 U. S. 415 (1963); NAACP v. Alabama ex rel. Patterson, 357 U. S. 449 (1958). With respect to laws that prevent discrimination, much depends upon the standards by which the courts examine private decisions that are an exercise of the right of association. For example, the Courts of Appeals generally have acknowledged that respect for academic freedom requires some deference to the judgment of schools and universities as to the qualifications of professors, particularly those considered for tenured positions. Lieberman v. Gant, 630 F. 2d 60, 67-68 (CA2 1980); Kunda v. Muhlenberg HISHON v. KING & SPALDING 81 69 Powell, J., concurring In admission decisions made by law firms, it is now widely recognized—as it should be—that in fact neither race nor sex is relevant. The qualities of mind, capacity to reason logically, ability to work under pressure, leadership, and the like are unrelated to race or sex. This is demonstrated by the success of women and minorities in law schools, in the practice of law, on the bench, and in positions of community, state, and national leadership. Law firms—and, of course, society—are the better for these changes. College, 621 F. 2d 532, 547-548 (CA3 1980). Cf. University of California Regents v. Bakke, 438 U. S. 265, 311-315 (1978) (opinion of Justice Powell). The present case, before us on a motion to dismiss for lack of subject-matter jurisdiction, does not present such an issue. 82 OCTOBER TERM, 1983 Syllabus 467 U. S. SOUTH-CENTRAL TIMBER DEVELOPMENT, INC. v. WUNNICKE, COMMISSIONER, DEPARTMENT OF NATURAL RESOURCES OF ALASKA, ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 82-1608. Argued February 29, 1984—Decided May 22, 1984 Pursuant to an Alaska statute, the Alaska Department of Natural Resources published a notice that it would sell certain timber from state lands under a contract requiring “primary manufacture” (partial processing) of the timber within Alaska before the successful bidder could ship it outside of the State. Petitioner, an Alaska corporation engaged in the business of purchasing timber and shipping the logs into foreign commerce, does not operate a mill in Alaska and customarily sells unprocessed logs. When it learned that the primary-manufacture requirement was to be imposed on the sale of state-owned timber involved here, petitioner filed an action in Federal District Court seeking an injunction on the ground that the requirement violated the negative implications of the Commerce Clause under which States may not enact laws imposing substantial burdens on interstate and foreign commerce unless authorized by Congress. The District Court agreed and issued an injunction, but the Court of Appeals reversed. That court found it unnecessary to reach the question whether, standing alone, the requirement would violate the Commerce Clause, because it found implicit congressional authorization in the federal policy of imposing a primary-manufacture requirement on timber taken from federal land in Alaska. Held: The judgment is reversed, and the case is remanded. 693 F. 2d 890, reversed and remanded. Justice White delivered the opinion of the Court with respect to Parts I and II, concluding that the Court of Appeals erred in holding that Congress has authorized Alaska’s primary-manufacture requirement. Although there is a clearly delineated federal policy, endorsed by Congress, imposing primary-manufacture requirements as to timber taken from federal lands in Alaska for export from the United States or for shipment to other States, in order for a state regulation to be removed from the reach of the dormant Commerce Clause as being authorized by Congress, congressional intent must be unmistakably clear. The requirement that Congress affirmatively contemplate otherwise invalid state legislation is mandated by the policies underlying dormant Com- SOUTH-CENTRAL TIMBER DEV. v. WUNNICKE 83 82 Opinion of the Court merce Clause doctrine. The fact that Alaska’s policy appears to be consistent with federal policy—or even that state policy furthers the goals that Congress had in mind—is an insufficient indicium of congressional intent. Congress acted only with respect to federal lands; it cannot be inferred from that fact that it intended to authorize a similar policy with respect to state lands. Pp. 87-93. White, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II, in which Burger, C. J., and Brennan, Blackmun, Powell, and Stevens, JJ., joined, and an opinion with respect to Parts III and IV, in which Brennan, Blackmun, and Stevens, JJ., joined. Brennan, J., filed a concurring opinion, post, p. 101. Powell, J., filed an opinion concurring in part and concurring in the judgment, in which Burger, C. J., joined, post, p. 101. Rehnquist, J., filed a dissenting opinion, in which O’Connor, J., joined, post, p. 101. Marshall, J., took no part in the decision of the case. LeRoy E. DeVeaux argued the cause for petitioner. With him on the briefs were Richard L. Crabtree, Donald I. Baker, Karen L. Grimm, and Erwin N. Griswold. Kathryn A. Oberly argued the cause for the United States as amicus curiae in support of petitioner. With her on the brief were Solicitor General Lee, Assistant Attorney General Habicht, Deputy Solicitor General Claiborne, and Dirk D. Snel. Ronald W. Lorensen, Deputy Attorney General of Alaska, argued the cause for respondents. On the brief were Norman C. Gorsuch, Attorney General, and Michael J. Frank and Michele D. Brown, Assistant Attorneys General.* Justice White announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II, and an opinion with respect to Parts III and IV, in which Justice Brennan, Justice Blackmun, and Justice Stevens joined. *James H. Clarke filed a brief for the Pacific Rim Trade Association et al. as amici curiae urging reversal. C. Dean Little filed a brief for Northwest Independent Forest Manufacturers et al. as amici curiae urging affirmance. 84 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. We granted certiorari in this case to review a decision of the Court of Appeals for the Ninth Circuit that held that Alaska’s requirement that timber taken from state lands be processed within the State prior to export was “implicitly authorized” by Congress and therefore does not violate the Commerce Clause. 464 U. S. 890 (1983). We hold that it was not authorized and reverse the judgment of the Court of Appeals. I In September 1980, the Alaska Department of Natural Resources published a notice that it would sell approximately 49 million board-feet of timber in the area of Icy Cape, Alaska, on October 23, 1980. The notice of sale, the prospectus, and the proposed contract for the sale all provided, pursuant to 11 Alaska Admin. Code §76.130 (1974), that “[p]rimary manufacture within the State of Alaska will be required as a special provision of the contract.”1 App. 35a. Under the primary-manufacture requirement, the successful bidder must partially process the timber prior to shipping it outside of the State.2 The requirement is imposed by contract and 1 The proposed contract, which the successful bidder on the timber sale would have been required to sign, provided: “Section 68. Primary Manufacture. Timber cut under this contract shall not be transported for primary manufacture outside the State of Alaska without written approval of the State. “Primary Manufacture is defined under 11 AAC 76.130 and the Governor’s policy statement of May 1974.” 211 Alaska Admin. Code §76.130 (1974) (repealed 1982), which authorized the contractual provision in question, provided: “PRIMARY MANUFACTURE “(a) The director may require that primary manufacture of logs, cordwood, bolts or other similar products be accomplished within the State of Alaska. “(b) The term primary manufacture means manufacture which is first in order of time or development. When used in relation to sawmilling, it means “(1) the breakdown process wherein logs have been reduced in size by a headsaw or gang saw to the extent that the residual cants, slabs, or planks SOUTH-CENTRAL TIMBER DEV. v. WUNNICKE 85 82 Opinion of the Court does not limit the export of unprocessed timber not owned by the State. The stated purpose of the requirement is to “protect existing industries, provide for the establishment of new industries, derive revenue from all timber resources, and manage the State’s forests on a sustained yield basis.” Governor’s Policy Statement, App. 28a. When it imposes the requirement, the State charges a significantly lower price for the timber than it otherwise would. Brief for Respondents 6-7. The major method of complying with the primary-manufacture requirement is to convert the logs into cants, which are logs slabbed on at least one side. In order to satisfy the Alaska requirement, cants must be either sawed to a maximum thickness of 12 inches or squared on four sides along their entire length.3 Petitioner, South-Central Timber Development, Inc., is an Alaska corporation engaged in the business of purchasing standing timber, logging the timber, and shipping the logs into foreign commerce, almost exclusively to Japan.4 It can be processed by resaw equipment of the type customarily used in log processing plants; or “(2) manufacture of a product for use without further processing, such as structural timbers (subject to a firm showing of an order or orders for this form of product). “(c) Primary manufacture, when used in reference to pulp ventures, means the breakdown process to a point where the wood fibers have been separated. Chips made from timber processing wastes shall be considered to have received primary manufacture. With respect to veneer or plywood production, it means the production of green veneer. Poles and piling, whether treated or untreated, when manufactured to American National Institute Standards specifications are considered to have received primary manufacture.” The local-processing requirement is now authorized by Alaska Admin. Code §§ 71.230, 71.910 (1982). 3 Current regulations require that the cants be no thicker than 83A inches unless slabs are taken from all four sides. 11 Alaska Admin. Code § 71.910 (1982). 4 Apparently, there is virtually no interstate market in Alaska timber because of the high shipping costs associated with shipment between 86 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. does not operate a mill in Alaska and customarily sells unprocessed logs. When it learned that the primary-manufacture requirement was to be imposed on the Icy Cape sale, it brought an action in Federal District Court seeking an injunction, arguing that the requirement violated the negative implications of the Commerce Clause.6 The District Court American ports. Consequently, over 90% of Alaska timber is exported to Japan. Brief for Petitioner 14, n. 14. 5 Although it would appear at first blush that it would be economically more efficient to have the primary processing take place within Alaska, that is apparently not the case. Material appearing in the record suggests that the slabs removed from the log in the process of making cants are often quite valuable, but apparently cannot be used and are burned. Record, Exh. 11, p. 63. It appears that because of the wasted wood, cants are actually worth less than the unprocessed logs. An affidavit of a vice president of South-Central states in part: “5. It is also my observation that within Alaska there is absolutely no market for domestic resawing of ‘cant’ or ‘square’ manufactured to State of Alaska specifications. In other words, a cant or square manufactured in Alaska would be virtually unsaleable within local Alaska sawmill markets. The reasons are: “A. Any sawmill would prefer round logs for its sawmill operations and the small volume of round logs required would be readily available locally. “B. Round logs are preferable because they can be stored in the water and moved in the water, whereas cants must be transported on land. “C. Once a log is placed on the sawmill carriage and the costs of getting it there have been incurred, it produces more lumber for the costs involved than does a cant. “D. Also the round log is much less subject to deterioration from weather and outside conditions. “6. South-Central had experience with attempting to make a sale of cants inside the State of Alaska. We had some cants at Jakalof Bay which were manufactured to State specifications, but which were not loaded aboard ships during that season. We attempted to market those cants to a sawmill in Anchorage, but found that just costs of transporting the cants from Jakalof Bay to Anchorage exceeded the highest possible sales price of the cants. Accordingly no sale was made. “7. Based on the above statements and my observations of the Alaska timber industry, it is my firm conclusion that a cant or a square manufactured to State of Alaska primary manufacture specifications is marketable SOUTH-CENTRAL TIMBER DEV. v. WUNNICKE 87 82 Opinion of the Court agreed and issued an injunction. South-Central Timber Development, Inc. n. LeResche, 511 F. Supp. 139 (Alaska 1981). The Court of Appeals for the Ninth Circuit reversed, finding it unnecessary to reach the question whether, standing alone, the requirement would violate the Commerce Clause, because it found implicit congressional authorization in the federal policy of imposing a primary-manufacture requirement on timber taken from federal land in Alaska. South-Central Timber Development, Inc. v. LeResche, 693 F. 2d 890 (1982). We must first decide whether the court was correct in concluding that Congress has authorized the challenged requirement. If Congress has not, we must respond to respondents’ submission that we should affirm the judgment on two grounds not reached by the Court of Appeals: (1) whether in the absence of congressional approval Alaska’s requirement is permissible because Alaska is acting as a market participant, rather than as a market regulator; and (2), if not, whether the local-processing requirement is forbidden by the Commerce Clause. II Although the Commerce Clause is by its text an affirmative grant of power to Congress to regulate interstate and foreign commerce, the Clause has long been recognized as a self-executing limitation on the power of the States to enact laws imposing substantial burdens on such commerce. See Lewis v. BT Investment Managers, Inc., 447 U. S. 27, 35 (1980); Hughes n. Oklahoma, 441 U. S. 322, 326 (1979); H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525, 534-538 (1949); Cooley v. Board of Wardens, 12 How. 299 (1852). It is equally clear that Congress may “redefine the distribution of power over interstate commerce” by “permit[ting] the only in foreign commerce and cannot be sold for use within Alaska. It is also my firm conclusion that no sawmill in Alaska will manufacture a cant or square for any domestic Alaska market.” App. 121a-122a. 88 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. states to regulate the commerce in a manner which would otherwise not be permissible.” Southern Pacific Co. v. Arizona, 325 U. S. 761, 769 (1945). See also Sporhase v. Nebraska ex rel. Douglas, 458 U. S. 941, 958-960 (1982); New England Power Co. v. New Hampshire, 455 U. S. 331 (1982); Western & Southern Life Insurance Co. v. State Board of Equalization, 451 U. S. 648, 652-655 (1981); Prudential Insurance Co. n. Benjamin, 328 U. S. 408 (1946). The Court of Appeals held that Congress had done just that by consistently endorsing primary-manufacture requirements on timber taken from federal land. 693 F. 2d, at 893. Although the court recognized that cases of this Court have spoken in terms of express approval by Congress, it stated: “But such express authorization is not always necessary. There will be instances, like the case before us, where federal policy is so clearly delineated that a state may enact a parallel policy without explicit congressional approval, even if the purpose and effect of the state law is to favor local interests.” Ibid. We agree that federal policy with respect to federal land is “clearly delineated,” but the Court of Appeals was incorrect in concluding either that there is a clearly delineated federal policy approving Alaska’s local-processing requirement or that Alaska’s policy with respect to its timber lands is authorized by the existence of a “parallel” federal policy with respect to federal lands. Since 1928, the Secretary of Agriculture has restricted the export of unprocessed timber cut from National Forest lands in Alaska. The current regulation, upon which the State places heavy reliance, provides: “Unprocessed timber from National Forest System lands in Alaska may not be exported from the United States or shipped to other States without prior approval of the Regional Forester. This requirement is neces- SOUTH-CENTRAL TIMBER DEV. v. WUNNICKE 89 82 Opinion of the Court sary to ensure the development and continued existence of adequate wood processing capacity in that State for the sustained utilization of timber from the National Forests which are geographically isolated from other processing facilities.” 36 CFR §223.10(c) (1983). From 1969 to 1973, Congress imposed a maximum export limitation of 350 million board-feet of unprocessed timber from federal lands lying west of the 100th meridian (a line running from central North Dakota through central Texas). 16 U. S. C. § 617(a). Beginning in 1973, Congress imposed, by way of a series of annual riders to appropriation Acts, a complete ban on foreign exports of unprocessed logs from western lands except those within Alaska. See, e. g., Pub. L. 96-126, Tit. Ill, §301, 93 Stat. 979. These riders limit only foreign exports and do not require in-state processing before the timber may be sold in domestic interstate commerce. The export limitation with respect to federal land in Alaska, rather than being imposed by statute, was imposed by the above-quoted regulation, and applies to exports to other States, as well as to foreign exports. Alaska argues that federal statutes and regulations demonstrate an affirmative expression of approval of its primarymanufacture requirement for three reasons: (1) federal timber export policy has, since 1928, treated federal timber land in Alaska differently from that in other States; (2) the Federal Government has specifically tailored its policies to ensure development of wood-processing capacity for utilization of timber from the National Forests; and (3) the regulation forbidding without prior approval the export from Alaska of unprocessed timber or its shipment to other States demonstrates that it is the Alaska wood-processing industry in particular, not the domestic wood-processing industry generally, that has been the object of federal concern. Acceptance of Alaska’s three factual propositions does not mandate acceptance of its conclusion. Neither South 90 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. Central nor the United States6 challenges the existence of a federal policy to restrict the out-of-state shipment of unprocessed Alaska timber from federal lands. They challenge only the derivation from that policy of an affirmative expression of federal approval of a parallel policy with respect to state timber. They argue that our cases dealing with congressional authorization of otherwise impermissible state interference with interstate commerce have required an “express” statement of such authorization, and that no such authorization may be implied. It is true that most of our cases have looked for an express statement of congressional policy prior to finding that state regulation is permissible. For example, in Sporhase n. Nebraska ex rel. Douglas, supra, the Court declined to find congressional authorization for state-imposed burdens on interstate commerce in ground water despite 37 federal statutes and a number of interstate compacts that demonstrated Congress’ deference to state water law. We noted that on those occasions in which consent has been found, congressional intent and policy to insulate state legislation from Commerce Clause attack have been “expressly stated.” 458 U. S., at 960. Similarly, in New England Power Co. v. New Hampshire, 455 U. S. 331 (1982), we rejected a claim by the State of New Hampshire that its restriction on the interstate flow of privately owned and produced electricity was authorized by § 201(b) of the Federal Power Act. That section provides that the Act “shall not . . . deprive a State or State commission of its lawful authority now exercised over the exportation of hydroelectric energy which is transmitted across a State line.” 16 U. S. C. § 824(b). We found nothing in the statute or legislative history “evinc[ing] a congressional intent ‘to alter the limits of state power otherwise imposed by the Commerce Clause.’” 455 U. S., at 341 6 The United States appears as amicus curiae in support of the position of South-Central. SOUTH-CENTRAL TIMBER DEV. v. WUNNICKE 91 82 Opinion of the Court (quoting United States v. Public Utilities Comm’n of California, 345 U. S. 295, 304 (1953)). Alaska relies in large part on this Court’s recent opinion in White v. Massachusetts Council of Construction Employers, Inc., 460 U. S. 204 (1983), for its “implicit approval” theory. At issue in White was an executive order issued by the Mayor of Boston requiring all construction projects funded by the city or by funds that the city had authority to administer, to be performed by a work force consisting of at least 50% residents of the city. A number of the projects were funded in part with federal Urban Development Action Grants. The Court held that insofar as the city expended its own funds on the projects, it was a market participant unconstrained by the dormant Commerce Clause; insofar as the city expended federal funds, “the order was affirmatively sanctioned by the pertinent regulations of those programs.” Id., at 215. Alaska relies on the Court’s statements in White that the federal regulations “affirmatively permit” and “affirmatively sanctio[n]” the executive order and that the order “sounds a harmonious note” with the federal regulations, and it finds significance in the fact that the Court did not use the words “expressly stated.” Rather than supporting the position of the State, we believe that White undermines it. If approval of state burdens on commerce could be implied from parallel federal policy, the Court would have had no reason to rely upon the marketparticipant doctrine to uphold the executive order. Instead, the order could have been upheld as being in harmony with federal policy as expressed in regulations governing the expenditure of federal funds. There is no talismanic significance to the phrase “expressly stated,” however; it merely states one way of meeting the requirement that for a state regulation to be removed from the reach of the dormant Commerce Clause, congressional intent must be unmistakably clear. The requirement that Congress affirmatively contemplate otherwise invalid state legis 92 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. lation is mandated by the policies underlying dormant Commerce Clause doctrine. It is not, as Alaska asserts, merely a wooden formalism. The Commerce Clause was designed “to avoid the tendencies toward economic Balkanization that had plagued relations among the Colonies and later among the States under the Articles of Confederation.” Hughes n. Oklahoma, 441 U. S. 322, 325 (1979). Unrepresented interests will often bear the brunt of regulations imposed by one State having a significant effect on persons or operations in other States. Thus, “when the regulation is of such a character that its burden falls principally upon those without the state, legislative action is not likely to be subjected to those political restraints which are normally exerted on legislation where it affects adversely some interests within the state.” South Carolina State Highway Dept. v. Barnwell Brothers, Inc., 303 U. S. 177, 185, n. 2 (1938); see also Southern Pacific Co. v. Arizona, 325 U. S., at 767-768, n. 2. On the other hand, when Congress acts, all segments of the country are represented, and there is significantly less danger that one State will be in a position to exploit others. Furthermore, if a State is in such a position, the decision to allow it is a collective one. A rule requiring a clear expression of approval by Congress ensures that there is, in fact, such a collective decision and reduces significantly the risk that unrepresented interests will be adversely affected by restraints on commerce.7 The fact that the state policy in this case appears to be consistent with federal policy—or even that state policy furthers the goals we might believe that Congress had in mind—is an insufficient indicium of congressional intent. Congress acted only with respect to federal lands; we cannot infer from that fact that it intended to authorize a similar policy with respect 7 The need for affirmative approval is heightened by the fact that Alaska’s policy has substantial ramifications beyond the Nation’s borders. The need for a consistent and coherent foreign policy, which is the exclusive responsibility of the Federal Government, enhances the necessity that congressional authorization not be lightly implied. SOUTH-CENTRAL TIMBER DEV. v. WUNNICKE 93 82 Opinion of White, J. to state lands.8 Accordingly, we reverse the contrary judgment of the Court of Appeals. Ill We now turn to the issues left unresolved by the Court of Appeals. The first of these issues is whether Alaska’s restrictions on export of unprocessed timber from state-owned lands are exempt from Commerce Clause scrutiny under the “market-participant doctrine.” Our cases make clear that if a State is acting as a market participant, rather than as a market regulator, the dormant Commerce Clause places no limitation on its activities. See White v. Massachusetts Council of Construction Employers, Inc., 460 U. S., at 206-208; Reeves, Inc. n. Stake, 447 U. S. 429, 436-437 (1980); Hughes v. Alexandria Scrap Corp., 426 U. S. 794, 810 (1976). The precise contours of the marketparticipant doctrine have yet to be established, however, the doctrine having been applied in only three cases of this Court to date. The first of the cases, Hughes v. Alexandria Scrap Corp., supra, involved a Maryland program designed to reduce the number of junked automobiles in the State. A “bounty” was established on Maryland-licensed junk cars, and the State imposed more stringent documentation requirements on out- 8 It is for that reason that we need not resolve the dispute between the parties about whether Congress’ purpose in applying the primary-manufacture requirement to federal lands was for the purpose of encouraging the Alaska wood-processing industry or whether it was merely to ensure adequate processing capacity to deal with federal timber. In either event, no congressional intent to permit a primary-manufacture requirement by the State appears. It is worthy of note, although we do not rely upon it, that Congress has been requested to authorize the imposition by States of in-state processing requirements but has declined to do so. Prohibit Export of Unprocessed Timber: Hearing on H. R. 639 before the Subcommittee on Forests, Family Farms, and Energy of the House Committee on Agriculture, 97th Cong., 1st Sess., 18-19 (1981). 94 OCTOBER TERM, 1983 Opinion of White, J. 467 U. S. of-state scrap processors than on in-state ones. The Court rejected a Commerce Clause attack on the program, although it noted that under traditional Commerce Clause analysis the program might well be invalid because it had the effect of reducing the flow of goods in interstate commerce. Id., at 805. The Court concluded that Maryland’s action was not “the kind of action with which the Commerce Clause is concerned,” ibid., because “[n]othing in the purposes animating the Commerce Clause prohibits a State, in the absence of congressional action, from participating in the market and exercising the right to favor its own citizens over others.” Id., at 810 (footnote omitted). In Reeves, Inc. v. Stake, supra, the Court upheld a South Dakota policy of restricting the sale of cement from a state-owned plant to state residents, declaring that “[t]he basic distinction drawn in Alexandria Scrap between States as market participants and States as market regulators makes good sense and sound law.” Id., at 436. The Court relied upon “‘the long recognized right of trader or manufacturer, engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal.’” Id., at 438-439 (quoting United States v. Colgate & Co., 250 U. S. 300, 307 (1919)). In essence, the Court recognized the principle that the Commerce Clause places no limitations on a State’s refusal to deal with particular parties when it is participating in the interstate market in goods. The most recent of this Court’s cases developing the market-participant doctrine is White n. Massachusetts Council of Construction Employers, Inc., supra, in which the Court sustained against a Commerce Clause challenge an executive order of the Mayor of Boston that required all construction projects funded in whole or in part by city funds or city-administered funds to be performed by a work force of at least 50% city residents. The Court rejected the argument that the city was not entitled to the protection of the doctrine because the order had the effect of regulating employment contracts between public contractors and their employees. Id., SOUTH-CENTRAL TIMBER DEV. v. WUNNICKE 95 82 Opinion of White, J. at 211, n. 7. Recognizing that “there are some limits on a state or local government’s ability to impose restrictions that reach beyond the immediate parties with which the government transacts business,” the Court found it unnecessary to define those limits because “[e]veryone affected by the order [was], in a substantial if informal sense, ‘working for the city.’” Ibid. The fact that the employees were “working for the city” was “crucial” to the market-participant analysis in White. United Building and Construction Trades Council v. Mayor of Camden, 465 U. S. 208, 219 (1984). The State of Alaska contends that its primary-manufacture requirement fits squarely within the market-participant doctrine, arguing that “Alaska’s entry into the market may be viewed as precisely the same type of subsidy to local interests that the Court found unobjectionable in Alexandria Scrap.” Brief for Respondents 24. However, when Maryland became involved in the scrap market it was as a purchaser of scrap; Alaska, on the other hand, participates in the timber market, but imposes conditions downstream in the timber-processing market. Alaska is not merely subsidizing local timber processing in an amount “roughly equal to the difference between the price the timber would fetch in the absence of such a requirement and the amount the state actually receives.” Ibid. If the State directly subsidized the timber-processing industry by such an amount, the purchaser would retain the option of taking advantage of the subsidy by processing timber in the State or forgoing the benefits of the subsidy and exporting unprocessed timber. Under the Alaska requirement, however, the choice is made for him: if he buys timber from the State he is not free to take the timber out of state prior to processing. The State also would have us find Reeves controlling. It states that “Reeves made it clear that the Commerce Clause imposes no limitation on Alaska’s power to choose the terms on which it will sell its timber.” Brief for Respondents 25. Such an unrestrained reading of Reeves is unwarranted. Although the Court in Reeves did strongly endorse the right of 96 OCTOBER TERM, 1983 Opinion of White, J. 467 U. S. a State to deal with whomever it chooses when it participates in the market, it did not—and did not purport to—sanction the imposition of any terms that the State might desire. For example, the Court expressly noted in Reeves that “Commerce Clause scrutiny may well be more rigorous when a restraint on foreign commerce is alleged,” 447 U. S., at 438, n. 9; that a natural resource “like coal, timber, wild game, or minerals,” was not involved, but instead the cement was “the end product of a complex process whereby a costly physical plant and human labor act on raw materials,” id., at 443-444; and that South Dakota did not bar resale of South Dakota cement to out-of-state purchasers, id., at 444, n. 17. In this case, all three of the elements that were not present in Reeves—foreign commerce, a natural resource, and restrictions on resale—are present. Finally, Alaska argues that since the Court in White upheld a requirement that reached beyond “the boundary of formal privity of contract,” 460 U. S., at 211, n. 7, then, a fortiori, the primary-manufacture requirement is permissible, because the State is not regulating contracts for resale of timber or regulating the buying and selling of timber, but is instead “a seller of timber, pure and simple.” Brief for Respondents 28. Yet it is clear that the State is more than merely a seller of timber. In the commercial context, the seller usually has no say over, and no interest in, how the product is to be used after sale; in this case, however, payment for the timber does not end the obligations of the purchaser, for, despite the fact that the purchaser has taken delivery of the timber and has paid for it, he cannot do with it as he pleases. Instead, he is obligated to deal with a stranger to the contract after completion of the sale.9 9 The facts of the present case resemble closely the facts of FosterFountain Packing Co. v. Haydel, 278 U. S. 1 (1928), in which the Court struck down a Louisiana law prohibiting export from the State of any shrimp from which the heads and hulls had not been removed. The Court SOUTH-CENTRAL TIMBER DEV. v. WUNNICKE 97 82 Opinion of White, J. That privity of contract is not always the outer boundary of permissible state activity does not necessarily mean that the Commerce Clause has no application within the boundary of formal privity. The market-participant doctrine permits a State to influence “a discrete, identifiable class of economic activity in which [it] is a major participant.” White v. Massachusetts Council of Construction Workers, Inc., 460 U. S., at 211, n. 7. Contrary to the State’s contention, the doctrine is not carte blanche to impose any conditions that the State has the economic power to dictate, and does not validate any requirement merely because the State imposes it upon someone with whom it is in contractual privity. See Tr. of Oral Arg. 35. The limit of the market-participant doctrine must be that it allows a State to impose burdens on commerce within the market in which it is a participant, but allows it to go no further. The State may not impose conditions, whether by statute, regulation, or contract, that have a substantial regulatory effect outside of that particular market.10 Unless the rejected the claim that the fact that the shrimp were owned by the State authorized the State to impose such limitations. Although not directly controlling here, because of the Court’s recognition that “the State owns, or has power to control, the game and fish within its borders not absolutely or as proprietor or for its own use or benefit but in its sovereign capacity as representative of the people,” id., at 11, the Court’s reasoning is relevant. The Court noted that the State might have retained the shrimp for consumption and use within its borders, but “by permitting its shrimp to be taken and all the products thereof to be shipped and sold in interstate commerce, the State necessarily releases its hold and, as to the shrimp so taken, definitely terminates its control.” Id., at 13. 10 The view of the market-participant doctrine expressed by Justice Rehnquist, post, at 102-103, would validate under the Commerce Clause any contractual condition that the State had the economic power to impose, without regard to the relationship of the subject matter of the contract and the condition imposed. If that were the law, it would have been irrelevant that the employees in White v. Massachusetts Council of Construction Workers, Inc., 460 U. S. 204 (1983), were in effect “working for the city.” Id., at 211, n. 7. If the only question were whether the condition is im 98 OCTOBER TERM, 1983 Opinion of White, J. 467 U. S. “market” is relatively narrowly defined, the doctrine has the potential of swallowing up the rule that States may not impose substantial burdens on interstate commerce even if they act with the permissible state purpose of fostering local industry. At the heart of the dispute in this case is disagreement over the definition of the market. Alaska contends that it is participating in the processed timber market, although it acknowledges that it participates in no way in the actual processing. Id., at 34. South-Central argues, on the other hand, that although the State may be a participant in the timber market, it is using its leverage in that market to exert a regulatory effect in the processing market, in which it is not a participant. We agree with the latter position. There are sound reasons for distinguishing between a State’s preferring its own residents in the initial disposition of goods when it is a market participant and a State’s attachment of restrictions on dispositions subsequent to the goods coming to rest in private hands. First, simply as a matter of intuition a state market participant has a greater interest as a “private trader” in the immediate transaction than it has in what its purchaser does with the goods after the State no longer has an interest in them. The common law recognized such a notion in the doctrine of restraints on alienation. See Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U. S. 373, 404 (1911); but cf. Continental T.V., Inc. v. GTE Sylvania Inc., 433 U. S. 36, 53, n. 21 (1977). Similarly, the antitrust laws place limits on vertical restraints. It is no defense in an action charging vertical trade restraints that the same end could be achieved through vertical integration; if it were, there would be virtually no antitrust scrutiny of vertical arrangements. We reject the contention that a State’s action as a market regulator may be upheld against Commerce Clause challenge on the ground that the State could posed by contract, a residency requirement could have been imposed with respect to the work force on all projects of any employer doing business with the city. SOUTH-CENTRAL TIMBER DEV. v. WUNNICKE 99 82 Opinion of White, J. achieve the same end as a market participant. We therefore find it unimportant for present purposes that the State could support its processing industry by selling only to Alaska processors, by vertical integration, or by direct subsidy. See Tr. of Oral Arg. 34, 37, 45. Second, downstream restrictions have a greater regulatory effect than do limitations on the immediate transaction. Instead of merely choosing its own trading partners, the State is attempting to govern the private, separate economic relationships of its trading partners; that is, it restricts the postpurchase activity of the purchaser, rather than merely the purchasing activity. In contrast to the situation in White, this restriction on private economic activity takes place after the completion of the parties’ direct commercial obligations, rather than during the course of an ongoing commercial relationship in which the city retained a continuing proprietary interest in the subject of the contract.11 In sum, the State may not avail itself of the market-participant doctrine to immunize its downstream regulation of the timber-processing market in which it is not a participant. IV Finally, the State argues that even if we find that Congress did not authorize the processing restriction, and even if we conclude that its actions do not qualify for the marketparticipant exception, the restriction does not substantially burden interstate or foreign commerce under ordinary Commerce Clause principles. We need not labor long over that contention. Viewed as a naked restraint on export of unprocessed logs, there is little question that the processing requirement cannot survive scrutiny under the precedents of the Court. For 11 This is not to say that the State could evade the reasoning of this opinion by merely including a provision in its contract that title does not pass until the processing is complete. It is the substance of the transaction, rather than the label attached to it, that governs Commerce Clause analysis. 100 OCTOBER TERM, 1983 Opinion of White, J. 467 U. S. example, in Pike v. Bruce Church, Inc., 397 U. S. 137 (1970), we invalidated a requirement of the State of Arizona that all Arizona cantaloupes be packed within the State. The Court noted that the State’s purpose was “to protect and enhance the reputation of growers within the State,” a purpose we described as “surely legitimate.” Id., at 143. We observed: “[T]he Court has viewed with particular suspicion state statutes requiring business operations to be performed in the home State that could more efficiently be performed elsewhere. Even where the State is pursuing a clearly legitimate local interest, this particular burden on commerce has been declared to be virtually per se illegal. Foster-Fountain Packing Co. v. Haydel, 278 U. S. 1; Johnson n. Haydel, 278 U. S. 16; Toomer v. Witsell, 334 U. S. 385.” Id., at 145. We held that if the Commerce Clause forbids a State to require work to be done within the State for the purpose of promoting employment, then, a fortiori, it forbids a State to impose such a requirement to enhance the reputation of its producers. Because of the protectionist nature of Alaska’s local-processing requirement and the burden on commerce resulting therefrom, we conclude that it falls within the rule of virtual per se invalidity of laws that “bloc[k] the flow of interstate commerce at a State’s borders.” City of Philadelphia v. New Jersey, 437 U. S. 617, 624 (1978). We are buttressed in our conclusion that the restriction is invalid by the fact that foreign commerce is burdened by the restriction. It is a well-accepted rule that state restrictions burdening foreign commerce are subjected to a more rigorous and searching scrutiny. It is crucial to the efficient execution of the Nation’s foreign policy that “the Federal Government . . . speak with one voice when regulating commercial relations with foreign governments.” Michelin Tire Corp. v. Wages, 423 U. S. 276, 285 (1976); see also Japan Line, Ltd. v. County of Los Angeles, 441 U. S. 434 (1979). In light of the substantial attention given by Congress to the subject of SOUTH-CENTRAL TIMBER DEV. v. WUNNICKE 101 82 Rehnquist, J., dissenting export restrictions on unprocessed timber, it would be peculiarly inappropriate to permit state regulation of the subject. See Prohibit Export of Unprocessed Timber: Hearing on H. R. 639 before the Subcommittee on Forests, Family Farms, and Energy of the House Committee on Agriculture, 97th Cong., 1st Sess. (1981). The judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with the opinion of this Court. It is so ordered. Justice Marshall took no part in the decision of this case. Justice Brennan, concurring. I join Justice White’s opinion in full because I believe Alaska’s in-state processing requirement constitutes market regulation that is not authorized by Congress. In my view, Justice White’s treatment of the market-participant doctrine and the response of Justice Rehnquist point up the inherent weakness of the doctrine. See Hughes v. Alexandria Scrap Corp., 426 U. S. 794, 817 (1976) (Brennan, J., dissenting). Justice Powell, with whom The Chief Justice joins, concurring in part and concurring in the judgment. I join Parts I and II of Justice White’s opinion. I would remand the case to the Court of Appeals to allow that court to consider whether Alaska was acting as a “market participant” and whether Alaska’s primary-manufacture requirement substantially burdened interstate commerce under the holding of Pike v. Bruce Church, Inc., 397 U. S. 137 (1970). Justice Rehnquist, with whom Justice O’Connor joins, dissenting. In my view, the line of distinction drawn in the plurality opinion between the State as market participant and the 102 OCTOBER TERM, 1983 Rehnquist, J., dissenting 467 U. S. State as market regulator is both artificial and unconvincing. The plurality draws this line “simply as a matter of intuition,” ante, at 98, but then seeks to bolster its intuition through a series of remarks more appropriate to antitrust law than to the Commerce Clause.* For example, the plurality complains that the State is using its “leverage” in the timber market to distort consumer choice in the timber-processing market, ibid., a classic example of a tying arrangement. See, e. g., United States Steel Corp. n. Fortner Enterprises, Inc., 429 U. S. 610, 619-621 (1977). And the plurality cites the common-law doctrine of restraints on alienation and the antitrust limits on vertical restraints in dismissing the State’s claim that it could accomplish exactly the same result in other ways. Ante, at 98-99. Perhaps the State’s actions do raise antitrust problems. But what the plurality overlooks is that the antitrust laws apply to a State only when it is acting as a market participant. See, e. g., Jefferson County Pharmaceutical Assn., Inc. v. Abbott Laboratories, 460 U. S. 150, 154 (1983) (state action immunity “does not apply where a State has chosen to compete in the private retail market”). When the State acts as a market regulator, it is immune from antitrust scrutiny. See Parker v. Brown, 317 U. S. 341, 350-352 (1943). Of course, the line of distinction in cases under the Commerce Clause need not necessarily parallel the line drawn in anti- *The plurality does offer one other reason for its demarcation of the boundary between these two concepts. “[D]ownstream restrictions have a greater regulatory effect than do limitations on the immediate transaction. Instead of merely choosing its own trading partners, the State is attempting to govern the private, separate economic relationships of its trading partners; that is, it restricts the postpurchase activity of the purchaser, rather than merely the purchasing activity.” Ante, at 99. But, of course, this is not a “reason” at all, but merely a restatement of the conclusion. The line between participation and regulation is what we are trying to determine. To invoke that very distinction in support of the line drawn is merely to fall back again on intuition. SOUTH-CENTRAL TIMBER DEV. v. WUNNICKE 103 82 Rehnquist, J., dissenting trust law. But the plurality can hardly justify placing Alaska in the market-regulator category, in this Commerce Clause case, by relying on antitrust cases that are relevant only if the State is a market participant. The contractual term at issue here no more transforms Alaska’s sale of timber into “regulation” of the processing industry than the resident-hiring preference imposed by the city of Boston in White v. Massachusetts Council of Construction Employers, Inc., 460 U. S. 204 (1983), constituted regulation of the construction industry. Alaska is merely paying the buyer of the timber indirectly, by means of a reduced price, to hire Alaska residents to process the timber. Under existing precedent, the State could accomplish that same result in any number of ways. For example, the State could choose to sell its timber only to those companies that maintain active primary-processing plants in Alaska. Reeves, Inc. v. Stake, 447 U. S. 429 (1980). Or the State could directly subsidize the primary-processing industry within the State. Hughes v. Alexandria Scrap Corp., 426 U. S. 794 (1976). The State could even pay to have the logs processed and then enter the market only to sell processed logs. See ante, at 99. It seems to me unduly formalistic to conclude that the one path chosen by the State as best suited to promote its concerns is the path forbidden it by the Commerce Clause. For these reasons, I would affirm the judgment of the Court of Appeals. 104 OCTOBER TERM, 1983 Syllabus 467 U. S. HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES v. DAY ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 82-1371. Argued December 5, 1983—Decided May 22, 1984 The Social Security Act (Act) and implementing regulations provide a four-step process for the administrative review and adjudication of disputed disability benefit claims under Title II of the Act. First, a state agency determines whether the claimant has a disability and the date it began or ceased. Second, if the claimant is dissatisfied with that determination, he may request a de novo reconsideration and in some cases a full evidentiary hearing. Third, if the claimant receives an adverse reconsideration determination, he is entitled to an evidentiary hearing and de novo review by an administrative law judge. Finally, if the claimant is dissatisfied with the administrative law judge’s decision, he may appeal to the Appeals Council of the Department of Health and Human Services (HHS). Respondents brought an action in Federal District Court on behalf of a statewide class of claimants in Vermont, seeking declaratory and injunctive relief from delays encountered in steps two and three that allegedly violated their right under 42 U. S. C. § 405(b) (1976 ed., Supp. V) to a hearing within a reasonable time. Holding that delays of more than 90 days in making reconsideration determinations, and delays of more than 90 days in granting a hearing request, were unreasonable and violated claimants’ statutory rights, the District Court issued an injunction in favor of the statewide class requiring the Secretary of HHS in the future to issue reconsideration determinations within 90 days of requests for reconsideration, to conduct hearings within 90 days of requests for hearings, and to pay interim benefits to any claimant who did not receive a reconsideration determination or hearing within 180 days of the request for reconsideration or who did not receive a hearing within 90 days of the hearing request. The Court of Appeals affirmed. Held: The District Court’s injunction constituted an unwarranted judicial intrusion into the pervasively regulated area of claims adjudication under Title II. The legislative history shows that Congress, in striking the balance between the need for timely disability determinations and the need to ensure the accuracy and consistency of such determinations in the face of heavy workloads and limited agency resources, has concluded that mandatory deadlines for adjudication of disputed disability HECKLER v. DAY 105 104 Opinion of the Court claims are inconsistent with the Act’s primary objectives. In light of Congress’ continuing concern that mandatory deadlines would subordinate quality to timeliness, and its recent efforts to ensure the quality of agency determinations, it hardly could have been contemplated that courts should have authority to impose judicially the very deadlines Congress repeatedly has rejected. Pp. 111-118. 685 F. 2d 19, vacated and remanded. Powell, J., delivered the opinion of the Court, in which Burger, C. J., and White, Rehnquist, and O’Connor, JJ., joined. Marshall, J., filed a dissenting opinion, in which Brennan, Blackmun, and Stevens, JJ., joined, post, p. 120. Assistant Attorney General McGrath argued the cause for petitioner. With him on the briefs were Solicitor General Lee, Deputy Solicitor General Geller, Edwin S. Kneedler, and John F. Cordes. Richard H. Munzing argued the cause for respondents. With him on the brief was Henry A. Freedman.* Justice Powell delivered the opinion of the Court. The question presented is the validity of an injunction issued on behalf of a statewide class that requires the Secretary of Health and Human Services to adjudicate all future disputed disability claims under Title II of the Social Security Act, 42 U. S. C. §401 et seq., according to judicially established deadlines and to pay interim benefits in all cases of noncompliance with those deadlines. I Title II of the Social Security Act (Act) was passed in 1935. 49 Stat. 622, as amended, 42 U. S. C. §401 et seq. Among other things, it provides for the payment of disability insur *Briefs of amici curiae urging affirmance were filed for the Alliance of Social Security Disability Recipients et al. by. Eileen P. Sweeny and Bonnie M. Milstein; and for the City of New York by Frederick A. O. Schwarz, Jr., and Leonard Koerner. 106 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. ance benefits to those whose disability prevents them from pursuing gainful employment. 42 U. S. C. §423? Disability benefits also are payable under the Supplemental Security Income (SSI) program established by Title XVI of the Act, 76 Stat. 197, as amended, 42 U. S. C. § 1381. The disability programs administered under Titles II and XVI “are of a size and extent difficult to comprehend.” Richardson n. Perales, 402 U. S. 389, 399 (1971). Approximately two million disability claims were filed under these two Titles in fiscal year 1983? Over 320,000 of these claims must be heard by some 800 administrative law judges each year? To facilitate the orderly and sympathetic administration of the disability program of Title II, the Secretary and Congress have established an unusually protective four-step process for the review and adjudication of disputed claims. First, a state agency determines whether the claimant has a disability and the date the disability began or ceased? 42 U. S. C. § 421(a); 20 CFR § 404.1503 (1983). Second, if the claimant is dissatisfied with that determination, he may request reconsideration of the determination. This involves a de novo reconsideration of the disability claim by the state agency, 1 Section 423(d)(1) defines “disability” as: “(A) inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” Any disability benefits payable under § 423 are paid out of the Federal Disability Insurance Trust Fund, which is funded by payroll taxes. 42 U. S. C. § 401(b). 2 Social Security Administration, 1983 Annual Report to Congress 43-44 (1983). 3 U. S. Dept, of Health and Human Services, Office of Hearings and Appeals, Key Workload Indicators 1, 16 (May 1983) (hereinafter Key Workload Indicators). In May 1983, the average number of cases pending per administrative law judge stood at a record 221. Id., at 1. 4 The state agency acts under the authority and control of the Secretary. See 42 U. S. C. § 421(a). HECKLER v. DAY 107 104 Opinion of the Court and in some cases a full evidentiary hearing. §§404.907-404.921. Additional evidence may be submitted at this stage, either on the request of the claimant or by order of the agency. Third, if the claimant receives an adverse reconsideration determination, he is entitled by statute to an evidentiary hearing and to a de novo review by an Administrative Law Judge (ALJ). 42 U. S. C. §405(b); 20 CFR §§404.929-404.961 (1983). Finally, if the claimant is dissatisfied with the decision of the ALJ, he may take an appeal to the Appeals Council of the Department of Health and Human Services (HHS).5 §§404.967-404.983. These four steps exhaust the claimant’s administrative remedies. Thereafter, he may seek judicial review in federal district court. 42 U. S. C. § 405(g). In this class action, the named plaintiffs sought declaratory and injunctive relief from delays encountered in steps two and three above. The action was initiated by Leon Day in November 1978 after his disability benefits were terminated and he suffered substantial delays in obtaining a reconsideration determination and in securing a hearing before an ALJ.6 After suffering similar delays, Amedie Maurais intervened in the action.7 On June 14, 1979, the District Court certified a statewide class consisting of: “All present and future Vermont residents seeking to secure Social Security disability benefits who, following an initial determination by the defendant that no disability 5 New material evidence may be submitted to the Appeals Council. The Council then reviews all the evidence and will reverse the ALJ’s determination only if it finds that the determination is “contrary to the weight of the evidence currently in the record.” 20 CFR § 404.970(b) (1983). 6 Day was forced to wait 167 days for a reconsideration determination. He received a hearing before the ALJ 173 days after his hearing request. App. to Pet. for Cert. 13a-14a. 7 Maurais waited 215 days for a reconsideration determination after his disability benefits were terminated. He was given a hearing before an ALJ 65 days after his hearing request. Id., at 14a. 108 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. exists, experience an unreasonable delay in the scheduling of and/or issuance of decisions in reconsiderations and fair hearings.” App. to Pet. for Cert. 12a, n. 1. Plaintiffs argued before the District Court that the delays they had experienced violated their statutory right under 42 U. S. C. § 405(b) (1976 ed., Supp. V) to a hearing within a reasonable time.8 Both parties submitted the case to the District Court on motions for summary judgment. On the basis of the undisputed evidence, the District Court held that, as to all claimants for Title II disability benefits in Vermont, delays of more than 90 days from a request for hearing before an AL J to the hearing itself were unreasonable.9 It granted partial summary judgment to the plaintiff class on that issue in December 1979. After the submission of additional evidence, the District Court considered motions for summary judgment concerning the reasonableness of delays in the reconsideration process. The additional evidence also was undisputed. It consisted of factual summaries of 77 randomly selected disability cases submitted by the Secretary. The District Court noted that the “summaries support the positions of both parties. They show the reconsideration process is often time consuming and 8 That section provides that after any unfavorable determination of disability, the claimant, on request, shall be entitled to “reasonable notice and opportunity for a hearing with respect to such decision.” 9 The evidence submitted by the Government showed that 57% of the hearings requested in Vermont after January 1978 were scheduled within 90 days, with a range of delays varying between two and nine months. Id., at 15a. The District Court rejected the Secretary’s claim that the delays were necessary to ensure quality decisions and to protect the limited resources of the Social Security program. It held that “[w]hile the SSA has made admirable strides in reducing the average length of delay experienced by claimants a few years ago, we [believe] . . . that the SSA is not warranted in forcing claimants to endure such lengthy delays without benefits, while it puts its administrative.appeals process in order.” Id., at 17a-18a. HECKLER v. DAY 109 104 Opinion of the Court complex. They also show that the process is replete with unexplained delay; other requests are processed with commendable dispatch.” App. to Pet. for Cert. 25a. In 27 of the 77 cases, reconsideration determinations took longer than 90 days. In each of these 27, the District Court concluded that the delays were caused by agency inefficiencies and were not justified by the “necessary steps in the reconsideration process.” Id., at 28a. On the basis of this survey, the District Court concluded that, as a rule, delays of more than 90 days in making reconsideration determinations were unreasonable and violated the claimant’s statutory rights.10 In August 1981, the District Court granted summary judgment for respondents on the reconsideration aspect of the case. In November 1981, the District Court issued an injunction in favor of the statewide class that “ordered and directed [the Secretary] to conclude reconsideration processing and issue reconsideration determinations within 90 days of requests for reconsideration made by claimants.”11 The injunction also required ALJs to provide hearings within 90 days after the 10 There is no express statutory requirement that reconsideration determinations be conducted within a reasonable time. The District Court reasoned, however, that because the reconsideration determination was an “administrative prerequisite” to an administrative hearing, “[u]nreason-able delays in the reconsideration procedures trench on the statutory duty to provide a hearing within a reasonable time.” Id., at 27a. That reasoning is not challenged here. “The order exempted reconsideration determinations from the 90-day deadline in the following circumstances: “(a) The claimant offers new medical evidence or reports new medical treatment since his initial determination; “(b) The claimant agrees to undergo a consultative examination when one is suggested by the defendant; “(c) The claimant or his representative causes a delay by failing to provide information needed for reconsideration; “(d) The claimant or his representative requests a delay; or, “(e) The delay is in some other way attributable to the aggrieved claimant or his representative.” Id., at 33a. 110 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. request is made by claimants.12 Finally, it ordered payment of interim benefits to any claimant who did not receive a reconsideration determination or hearing within 180 days of the request for reconsideration or who did not receive a hearing within 90 days of the hearing request.13 The Court of Appeals for the Second Circuit affirmed the District Court’s determination that the challenged delays violated the statute and upheld the District Court’s remedial order. Day v. Schweiker, 685 F. 2d 19 (1982). We granted certiorari to consider whether it is appropriate for a federal court, without statutory authorization, to prescribe deadlines for agency adjudication of Title II disability claims and to order payment of interim benefits in the event of noncompliance. 461 U. S. 904 (1983).14 We conclude that the legislative history makes 12 The order exempted hearing requests from the 90-day deadline in the following circumstances: “(a) The claimant or his representative causes a delay by failing to provide information needed for adjudication; “(b) The claimant or his representative requests a delay; “(c) The claimant or his representative fails to appear for the scheduled hearing[;] “(d) The delay is in some other way attributable to the claimant or his representative.” Id., at 34a. 13 Because the District Court held that the challenged delays violated § 405(b), it did not reach plaintiffs’ claims that the delays violated the Administrative Procedure Act or their due process rights under the Fourteenth Amendment. 14 We note at the outset that the District Court had jurisdiction to consider respondents’ statutory claim under 42 U. S. C. § 405(g). There are two prerequisites to § 405(g) jurisdiction. Mathews v. Eldridge, 424 U. S. 319, 328 (1976); Weinberger v. Salfi, 422 U. S. 749, 763-767 (1975). The non waivable jurisdictional requirement that a claim for benefits shall have been presented to the Secretary has been met here. The jurisdictional requirement that administrative remedies be exhausted is waivable. In the present case, the Secretary has not challenged the sufficiency of respondents’ efforts to exhaust administrative remedies. We interpret this to be a waiver by the Secretary of the exhaustion requirement under § 405(g). See Salfi, supra, at 767. HECKLER v. DAY 111 104 Opinion of the Court clear that Congress, fully aware of the serious delays in resolution of disability claims, has declined to impose deadlines on the administrative process. Accordingly, we vacate the judgment below. II The Secretary does not challenge here the determination that § 405(b) requires administrative hearings to be held within a reasonable time. Nor does she challenge the District Court’s determination that the delays encountered in the cases of plaintiffs Day and Maurais violated that requirement.15 She argues only that a statewide injunction that imposes judicially prescribed deadlines on HHS for all future disability determinations is contrary to congressional intent and constitutes an abuse of the court’s equitable power. She argues in the alternative that even if the injunction is appropriate, the order requiring payment of interim benefits in cases of noncompliance is not. The Secretary looks primarily to legislative history to support both arguments. A The Secretary correctly points out that Congress repeatedly has been made aware of the long delays associated with resolution of disputed disability claims and repeatedly has considered and expressly rejected suggestions that mandatory deadlines be imposed to cure that problem.16 She ar 16 Nor do we understand the Secretary to dispute the District Court’s determination that the 27 sample cases it studied evidenced statutory violations of the reasonableness requirement. 16 The delays are not a recent development. In fiscal year 1973, the median time between hearing request and posthearing disposition was 174 days. The mean processing time reached a high in fiscal year 1976 at 288 days. At the time this action was filed in District Court (November 1978), the mean processing time was 151 days. Key Workload Indicators 1. As the District Court observed, “the [Secretary] has made admirable strides in reducing the average length of delay experienced by claimants a few years ago.” See n. 9, supra. 112 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. gues that Congress expressly has balanced the need for timely disability determinations against the need to ensure quality decisions in the face of heavy and escalating workloads and limited agency resources. In striking that balance, the Secretary argues, the relevant legislative history also shows that Congress to date has determined that mandatory deadlines for agency adjudication of disputed disability claims are inconsistent with achievement of the Act’s primary objectives, and that the District Court’s statewide injunction flatly contradicts that legislative determination. We find this argument persuasive. Congressional concern over timely resolution of disputed disability claims under Title II began at least as early as 1975.17 It has inspired almost annual congressional debate since that time.18 The consistency with which Congress has expressed concern over this issue is matched by its consistent refusal to impose on the Secretary mandatory deadlines for resolution of disputed disability claims. In 1975, the House Social Security Subcommittee held hearings on the delays encountered in resolving disputed Social Security claims,19 and 60 Members of the House sponsored a bill imposing statutory deadlines for each step in the 17 See Delays in Social Security Appeals: Hearings before the Subcommittee on Social Security of the House Committee on Ways and Means, 94th Cong., 1st Sess. (1975) (hereinafter 1975 Hearings). 18 See, e. g., Disability Insurance Program: Public Hearings before the Subcommittee on Social Security of the House Committee on Ways and Means, 94th Cong., 2d Sess., 341-343 (1976); Administrative Law Judges, HEW Executive Level Positions, and Salary Adjustment for Director of Office of Management and Budget: Hearings before the Subcommittee on Employee Ethics and Utilization of the House Committee on Post Office and Civil Service, 95th Cong., 1st Sess., 10-11, 16-17 (1977); Disability Insurance Program—1978: Hearings before the Subcommittee on Social Security of the House Committee on Ways and Means, 95th Cong., 2d Sess., 15-17, 97-99 (1978). 19 See 1975 Hearings. HECKLER v. DAY 113 104 Opinion of the Court administrative review of disputed SSA claims.20 Expressions of concern were voiced in both the Senate and the House over the “huge backlog of some 103,000 cases awaiting hearing” before an AL J. S. Rep. No. 94-550, p. 3 (1975); accord H. R. Rep. No. 94-679, pp. 1-2 (1975).21 Despite this concern, the Staff of the House Subcommittee advised against statutory deadlines because of the potential “adverse effect on the quality and uniformity of disability adjudication which is already somewhat suspect.” Staff of the Subcommittee on Social Security of the House Committee on Ways and Means, Appeals Process: Areas of Possible Administrative or Legislative Action, 94th Cong., 1st Sess., 1-2 (Comm. Print 1975).22 Congress agreed and refused to impose statutory deadlines on the Secretary. Bills proposing statutory deadlines have been proposed almost annually since 1975,23 and congressional concern over the delay problem has remained high. For example, in 1980 Congress directed the Secretary to submit a report recommending the establishment of appropriate and realistic deadlines for resolution of disputed SSA claims. It ordered the 20H. R. 5276, 94th Cong., 1st Sess. (1975). That bill proposed the following deadlines: 90 days for an initial determination of eligibility; 90 days for a reconsideration determination; 120 days from hearing request to posthearing decision; and 120 days for a decision by the Appeals Council. 21 By the end of fiscal year 1975, there was a backlog of 111,169 cases, and a mean processing time of 262 days from hearing request to posthearing decision. Key Workload Indicators 1. 22 The concern was expressed throughout the House hearings that mandatory deadlines would worsen the situation of an already overburdened staff, thereby jeopardizing the quality of agency decisions. See, e. g., 1975 Hearings 8 (“Equally important as speed of processing of cases, is the question of the quality of adjudication”); id., at 17 (“Heavier work loads and efforts to increase individual ALJ production place more strain on the quality of adjudication”). 23See H. R. 12466, 94th Cong., 2d Sess. (1976); H. R. 5151, 95th Cong., 1st Sess. (1977); H. R. 12672, 95th Cong., 2d Sess. (1978); H. R. 747, 96th Cong., 1st Sess. (1979); H. R. 4775, 97th Cong., 1st Sess. (1981). 114 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. Secretary in doing so to consider “both the need for expeditious processing of claims for benefits and the need to assure that all such claims will be thoroughly considered and accurately determined.” Pub. L. 96-265, §308, 94 Stat. 458, note following 42 U. S. C. §401. The Senate Report explained that “Congress could then evaluate the recommendations for consistency with the elements it wishes to emphasize and, if needed, take further action next year.” S. Rep. No. 96-408, p. 59 (1979).24 The Secretary submitted a report in October 1980, suggesting deadlines of 150 days for reconsideration determinations and 165 days from hearing to posthearing decision, both subject to certain exceptions. U. S. Dept, of Health and Human Services, Report to Congress, Implementation of Section 308, Public Law 96-265, p. 1 (Oct. 21, 1980). The Secretary, however, cautioned Congress that budget and staff limitations and burgeoning workloads “mitigate [sic] against the Department meeting its proposed time limitation objectives in every instance.” Id., at 2. Since receiving the Secretary’s report, Congress has refused to impose mandatory deadlines on the Secretary, or to direct her to promulgate them herself. Certainly in Congress the concern that mandatory deadlines would jeopardize the quality and uniformity of agency decisions has prevailed over considerations of timeliness. In its most recent comment on the subject, the House Commit 24 In requesting recommendations from the Secretary, Congress faced opposition from those who continued to press for statutory deadlines. See Disability Insurance Legislation: Hearings before the Subcommittee on Social Security of the House Committee on Ways and Means, 96th Cong., 1st Sess., 114 (1979) (statement of Dennis M. Sweeney and Laura W. S. Macklin on behalf of the Administrative Law Center, etc.) (“[T]he problem of delays in the Social Security hearing system has been before Congress repeatedly and for a number of years. ... At this point, HEW is well aware of the problems in this area. . . . [W]e respectfully submit that this is not the time to further study the delay problem. A provision in this bill suggesting a study from HEW . . . can only be read as an invitation to further delay cleaning up the hearing process and getting rid of the unreasonable and unnecessary delays”). HECKLER v. DAY 115 104 Opinion of the Court tee on Ways and Means expressly disapproved mandatory hearing deadlines and indicated disagreement with recent judicial decisions imposing such time restrictions. Criticizing the decision in Blankenship v. Secretary of HEW, No. C75-0185L(A) (WD Ky., May 6, 1976), which had imposed judicially prescribed hearing deadlines on the Secretary and ordered the payment of interim benefits in the event of non-compliance,25 the Committee reported: “[The] Committee believes that a disability claimant is entitled to a timely hearing and decision on his appeal, but it also recognizes that the time needed before a well-reasoned and sound disability hearing decision can be made may vary widely on a case-by-case basis. . . . Establishing strict time limits for the adjudication of every case could result in incorrect determinations because time was not available to . . . reach well-reasoned decisions in difficult cases.” H. R. Rep. No. 97-588, pp. 19-20 (1982).26 26 The District Court’s original unpublished memorandum opinion required the Secretary to comply with a hearing request within 90 days. The Court of Appeals for the Sixth Circuit reversed that order and remanded for the Secretary to issue regulations promulgating mandatory deadlines. Blankenship v. Secretary of HEW, 587 F. 2d 329 (1978). On remand, the Secretary attempted to promulgate such regulations, but concluded that unpredictable caseloads made deadlines impossible. The Secretary then petitioned the District Court for relief from the requirement that she promulgate deadlines. The District Court refused and ordered the Secretary to promulgate the regulations. Blankenship v. Secretary of Health & Human Services, 532 F. Supp. 739 (WD Ky. 1982). The Sixth Circuit affirmed on appeal. Blankenship v. Schweiker, 722 F. 2d 1282 (1983). Justice O’Connor has stayed the District Court’s order requiring the Secretary to promulgate regulations pending our decision in this case. Heckler v. Blankenship, 465 U. S. 1301 (1984). 26 This clear expression of congressional disapproval refutes the dissent’s suggestion that Congress implicitly has endorsed judicially mandated deadlines by failing to repudiate those judicial decisions that have imposed them. See post, at 125-126. There is simply no basis for the dissent’s proposition that this passage “when read in context, supports only the inference that Congress chose not to ‘assert its power to give the district 116 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. Finally, the Secretary points out that judicially imposed deadlines may vary from case to case and from State to State, requiring HHS to shuffle its staff nationwide. Not only would this tend seriously to disrupt agency administration, but wide variations in judicially imposed deadlines also would prevent realization of Congress’ oft-repeated goal of uniform administration of the Act. See, e. g., S. Rep. No. 96-408, pp. 52-56 (1979) (emphasizing concern over “state-to-state” variations and expressing hope that current legislation would “both improve the quality of determinations and ensure that claimants throughout the Nation will be judged under the same uniform standards and procedures”) (emphasis added).27 B Legislation enacted by Congress in 1980 and 1982 is fully consistent with the repeated rejection of proposals for mandatory deadlines and with efforts by Congress to ensure qual courts more specific direction.’” Post, at 127, n. 8 (quoting White v. Mathews, 559 F. 2d 852,861 (CA21977), cert, denied, 435 U. S. 908 (1978)). A 1981 Committee Staff Report recommended that quality should no longer be sacrificed for promptness: “Back in 1975, [the SSA] gave lip service to quality, worrying primarily about processing time and case backlog. . . . “Beginning in 1978, the Subcommittee examined in some depth two State agencies—New York and New Jersey—which were expediting cases at the expense of quality with the tacit consent of SSA’s Regional Office in New York. Their operations have still not fully recovered. . . . One of the recommendations made by the Social Security Administration. . . was that the State adjudicators ‘should be reminded that (1) the goal of adjudication quality takes precedence over that of expeditious processing and (2) that adjudicators should use whatever time is necessary to secure essential medical evidence.’ ” Staff of the Subcommittee on Social Security of the House Committee on Ways and Means, Status of the Disability Insurance Program, 97th Cong., 1st Sess., 12-13 (Comm. Print 1981). 27 The dissent’s suggestion that Congress meant to prohibit only nationwide and not statewide deadlines is unpersuasive. The legislative history suggests no distinction between the two. Moreover, injunctive orders imposing varying deadlines from State to State would defeat the express congressional goal of uniformity. See S. Rep. No. 96-408, pp. 52-56 (1979). HECKLER v. DAY 117 104 Opinion of the Court ity and uniformity in agency adjudication. In 1980, Congress amended § 405(b) to require that every initial determination of ineligibility contain an easily understandable discussion of the evidence and the reasons for the determination. Pub. L. 96-265, 94 Stat. 457, 42 U. S. C. § 405(b). At the same time, Congress added §421(i) to require a tri-annual assessment of the continuing eligibility of recipients of disability benefits. Pub. L. 96-265, 94 Stat. 460, 42 U. S. C. § 421(i). Congress also included in the 1980 amendments a requirement that the Secretary review at least 65% of all determinations of eligibility made by state agencies in any fiscal year after 1982. Pub. L. 96-265, 94 Stat. 456, 42 U. S. C. §§ 421(c)(2), O).28 Before 1972, the Secretary had reviewed the majority of state determinations as a matter of course. A growing workload required the Secretary to abandon this practice for a sample review of only 5% of the state agency determinations. H. R. Rep. No. 96-100, p. 10 (1979). The 1980 amendment, requiring review of a substantially higher percentage of state agency disability determinations, presumably will have an effect on the timely resolution of disputed disability claims.29 Finally, in 1983 Congress provided that effective January 1, 1984, an initial determination that previously granted disability benefits should be terminated entitles the claimant not only to a de novo review on reconsideration, but to a full evidentiary hearing as well. Pub. L. 97-455, 96 Stat. 2499, 42 U. S. C. § 405(b)(2). All of these changes will impose additional duties on the Secretary and her heavily burdened staff. In light of Congress’ continuing concern that mandatory deadlines would subordinate quality to timeliness, and its recent efforts to ensure the quality of agency determinations, 28 The 1980 amendments also authorized the Secretary to review determinations of ineligibility on her own motion. 42 U. S. C. § 421(c)(1). 29 The legislative history of this amendment suggests that Congress was concerned that undue emphasis on expediting resolution of disputed claims had resulted in a marked loss of quality and uniformity in agency decisions. See, e. g., S. Rep. No. 96-408, pp. 52-56 (1979). 118 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. it hardly could have contemplated that courts should have authority to impose the very deadlines it repeatedly has rejected.30 C Persuasive evidence of the intention of Congress also is found in the distinction it has made between the resolution of SSI claims for old-age and survivor benefits and SSI claims for disability benefits. Section 405(b), governing eligibility determinations under Title II, and § 1383(c)(1), governing eligibility determinations under Title XVI, are virtually identical. In the event of adverse determinations, both require the Secretary to provide claimants with “reasonable notice and opportunity for a hearing.” In the case of disputed SSI claims, however, § 1383(c)(2) requires a posthearing decision within 90 days of the hearing request, except in the case of disputed disability claims. This provision makes two things clear: (i) Congress will establish hearing deadlines when it deems them appropriate; and (ii) Congress has determined that it is inappropriate to subject disputed disability claims to mandatory deadlines.31 Ill The Secretary also contends that quite apart from the congressional rejection of the mandatory deadlines discussed above, the District Court’s order unduly intruded upon the 30 The suggestion made by the dissent that this legislative history “has little relevance to the task before us,” post, at 125, is mistaken. The legislative history set forth in this opinion demonstrates far more than simple congressional inaction in the face of acknowledged delays; it explicitly shows that Congress has rejected repeated demands for mandatory deadlines. We rarely see as clear an expression of congressional intent. 31 As early as 1967, Congress recognized the difference between old-age and disability claims: “The process of making disability determinations is significantly different from the retirement and survivors insurance claims process. In the disability processf,] State vocational rehabilitation agencies are involved importantly in the making of the decision[,] and in borderline cases[,] lengthy and extensive development of facts of a medical nature is often required.” S. Rep. No. 744, 90th Cong., 1st Sess., 107 (1967). HECKLER v. DAY 119 104 Opinion of the Court discretion with which Congress has granted the Secretary to adopt rules and procedures for the adjudication of claims. See Heckler v. Campbell, 461 U. S. 458, 466 (1983); Schweiker v. Gray Panthers, 453 U. S. 34, 43-44 (1981); Batterton v. Francis, 432 U. S. 416, 425 (1977). We need not reach this broader contention, however, because of repeated congressional rejection of the imposition of mandatory deadlines on agency adjudication of disputed disability claims.32 In light of the unmistakable intention of Congress, it would be an unwarranted judicial intrusion into this pervasively regulated area for federal courts to issue injunctions imposing deadlines with respect to future disability claims.33 Accordingly, we vacate the judgment of the Court of Appeals, and remand the case for further proceedings consistent with this opinion.34 It is so ordered. 32 In view of Congress’ unequivocal determination that mandatory deadlines are inappropriate, the repeated references in the dissenting opinion to the “reasonableness” of the injunctive order at issue here are simply irrelevant. See post, at 121-122, n. 1, 132-133, 134-135. The dissent states that the injunction at issue is “carefully tailored,” and assumes that the Secretary would have no difficulty complying with it. Post, at 120. Even if this assumption were correct, it hardly suggests that this Court should disregard the considered determination of Congress that mandatory deadlines are inappropriate. 33 We make clear that nothing in this opinion precludes the proper use of injunctive relief to remedy individual violations of § 405(b). Our decision in this case is limited to the question whether, in view of the unequivocally clear intent of Congress to the contrary, it is nevertheless appropriate for a federal court to prescribe mandatory deadlines with respect to the adjudication of disability claims under Title II of the Act. We understand that the courts below were moved by long delays that well may have caused serious deprivations. But this does not justify imposing absolute periods of limitations applicable to all claims—limitations that Congress repeatedly has declined to enact. 34 The District Court’s order requiring the payment of interim benefits was conditioned on noncompliance with the injunction. Because we have held that the injunction is invalid, we need not address the propriety of that part of the District Court’s order requiring payment of interim benefits. 120 OCTOBER TERM, 1983 Marshall, J., dissenting 467 U. S. Justice Marshall, with whom Justice Brennan, Justice Blackmun, and Justice Stevens join, dissenting. This case determines an issue of vital importance to the Social Security Administration, to disabled Vermont residents, and to federal courts. By failing to ground its opinion in the factual record of the case at hand, the majority has discarded a balanced remedy crafted to effectuate a federal statute. Far from intruding clumsily into a pervasively regulated area, ante, at 119, the District Court fashioned a meaningful, carefully tailored statewide remedy that mandated feasible, expeditious reconsideration determinations and hearings, that did not cause extra cost to the Secretary or reallocation to Vermont of resources from other States, and that did not harm other statutory goals such as quality and accuracy of decisionmaking. Because that remedy is not expressly or impliedly prohibited by the Constitution or by statute, and is not an abuse of discretion, I would affirm the judgment of the Court of Appeals. I A As the majority opinion makes clear, the District Court’s declaratory judgment that the plaintiff class is entitled to relief is not at issue. The Secretary concedes that 42 U. S. C. § 405(b) compels her to provide claimants a hearing on disputed disability determinations within a reasonable time. Cf., e. g., White v. Mathews, 559 F. 2d 852, 858 (CA2 1977), cert, denied, 435 U. S. 908 (1978). The Secretary does not contest the District Court’s conclusion that, because under the Secretary’s regulations a hearing must be preceded by a reconsideration determination, see ante, at 106-107, such reconsiderations must also be completed within a reasonable time. The undisputed factual record, submitted primarily by the Secretary herself, supports the District Court’s declaratory judgment that the Secretary had failed to fulfill her statutory duty to provide the class representatives and a large portion of the plaintiff class reconsideration determina HECKLER v. DAY 121 104 Marshall, J., dissenting tions and hearings within reasonable periods of time. While the Secretary challenges classwide relief, she has not challenged the District Court’s certification of the plaintiff class. Our review, therefore, is limited to the equitable remedy crafted by the District Court and affirmed by the Court of Appeals. B A fair assessment of the validity of the District Court’s order requires a clear view of its content and the record on which it was based. In brief, the District Court ordered that a member of the plaintiff class—Vermont disability claimants whose benefits have been terminated and new applicants for disability entitlements—who requests review of an initial determination by the Secretary that he or she is not disabled must receive the Secretary’s reconsideration within 90 days of his or her request for review. If the reconsideration is adverse and the claimant requests a hearing, the hearing must be held within 90 days of the request. However, both of these time limits are subject to exceptions which have tolling effect. If the Secretary does not provide a hearing within the time limits, she is required to provide interim benefits, which she may recoup if the claimant is ultimately found not to be entitled to benefits.1 1 The occurrence of one of three events triggers the requirement that interim benefits be paid: the Secretary does not issue a reconsideration decision within 180 days of request; the Secretary fails to hold a hearing within 180 days (plus any delay attributable to the claimant) of a prior request for reconsideration followed by a request for a hearing; the Secretary fails to hold a hearing within 90 days of a request. App. to Pet. for Cert. 34a-35a. The Secretary retains the option under the District Court’s conditional order either to conduct review within the established time periods, or to initiate recoupable payments. The agency thus is not operating under the threat of contempt actions for failure to comply with the time limits, and the remedy is consequently minimally intrusive. Nor has the District Court intruded into the day-to-day operations of the agency. The District Court requested and accepted a plan drafted by the Secretary to implement the order. See App. 196-200. Vermont Title II 122 OCTOBER TERM, 1983 Marshall, J., dissenting 467 U. S. The District Court was careful to ensure that its order had no repercussions outside the State of Vermont. The certified class was limited to Vermont Title II claimants. The Secretary stated that the resources allocated by Congress to process hearing requests in that State were the resources she needed to do the job.2 There was no evidence before the court that enforcing Vermont claimants’ statutory right to timely hearings would require the Secretary to reallocate her resources to the detriment of disability claimants in other States.3 The District Court ordered compliance with the prescribed time limits only after reviewing extensive responses to interrogatories, in which the Secretary acknowledged not only that she was able to comply with those limits, but that it was her stated policy to do so.4 The record also supported the court’s decision to craft nine exceptions to those time limits. The Secretary argued that the review process required some flexibility, and specified a variety of circumstances in which delay in completing a reconsideration or scheduling a hearing was justified. The District Court tailored its remedy to accommodate each of the Secretary’s submissions. If a claimant offers new medical evidence, reports new medical treat claimants’ requests for reviews of adverse initial determinations of disability are flagged with a cover sheet that notes the dates by which reconsiderations and hearings should be held, and permits easy recordkeeping of any applicable exceptions that toll the time limits. 2 Defendant’s Answer to Interrogatories Nos. 16, 17, App. 49 (averring that three Administrative Law Judges are needed to conduct Title II disability hearings in Vermont and three have been assigned to the State). 3 The Secretary agrees that she has been able to fulfill her obligation to provide timely hearings as defined by the District Court. Since the District Court’s first injunction went into effect, the Secretary has been able to comply with the hearing timetable in all but one case, and she has done so without transferring any personnel or other resources into Vermont. Tr. of Oral Arg. 33, 51. 4 Defendant’s Answer to Interrogatories, Nos. 19, 24, App. 50, 52 (agency’s established policy is to conduct hearings within 90 days of request). HECKLER v. DAY 123 104 Marshall, J., dissenting ment since the initial determination, agrees to undergo a consultative examination when the Secretary so suggests, causes a delay by failing to provide the information needed to reconsider the initial determination of nondisability, or otherwise causes a delay, the District Court ordered that the 90-day limit on the time from a reconsideration request to issuance of the notice of the result be tolled. App. to Pet. for Cert. 33a. Because the Secretary urged that it was frequently in the claimant’s interest to delay, the court also tolled the time limit for any period of delay requested by the claimant or his representative. Ibid. Similarly, the District Court tolled the 90-day limit on the time from a request for a hearing to the provision of a hearing when the claimant or his representative either fails to provide information needed by the Administrative Law Judge (ALJ) for adjudication, requests a delay, fails to appear for the scheduled hearing, or otherwise causes delay. Id., at 34a. Finally, the remedy pertains only to the Secretary’s statutory obligation to provide hearings within a reasonable time. The order places no time limit on the Secretary’s issuance of decisions, although the plaintiffs, relying on the Social Security Act, the Administrative Procedure Act, 5 U. S. C. §§ 555(b),(e), 706(1), and the Constitution, included in their request for relief a plea that “a hearing decision be rendered promptly” after a hearing. App. 24. By its repeated references to decisions and overall processing time, the majority implies that the District Court tied the hands of ALJs, forcing them to evaluate complex disability claims in a race against the clock. The order we are reviewing simply does not speak to decisionmaking; it interprets and enforces only a claimant’s right to a timely hearing. In sum, the District Court’s order was based on an extensive record of the actual operation of the disability program by the State of Vermont and the Secretary, and the plaintiff class members’ experience in attempting to assert their stat 124 OCTOBER TERM, 1983 Marshall, J., dissenting 467 U. S. utory right to timely hearings. The order mirrored the Secretary’s stated policy of holding hearings within 90 days of a request, a policy she was capable of implementing without additional resources. The District Court created nine exceptions to the mandatory time limits, exceptions directly linked to the Secretary’s responsibility to make accurate determinations of disability. And the order placed no time limit on the rendering of decisions. With this clearer understanding of the relief granted by the District Court, we turn to the question whether such an equitable remedy is precluded by law. II A In the absence of a clear command to the contrary from Congress, federal courts have equitable power to issue injunctions in cases over which they have jurisdiction. Porter v. Warner Holding Co., 328 U. S. 395, 398 (1946). This Court has expressly rejected the arguments that the judicial review provision of the Social Security Act “does not encompass the equitable power to direct that the statute be implemented through procedures other than those authorized by the Secretary,” and that class injunctive relief is not available under 42 U. S. C. § 405(g). Califano v. Yamasaki, 442 U. S. 682, 705, and n. 17 (1979). Although Congress has delegated to the Secretary “full power and authority to make rules and regulations and to establish procedures,” 42 U. S. C. § 405(a), that discretion is limited by the requirement that procedures be consistent with the Social Security Act, and necessary or appropriate to carry out its provisions. Ibid. Courts may require the Secretary to comply with the statute. A federal court thus is not precluded by statute from ordering injunctive relief when the record in a case supports the conclusions that the plaintiffs are entitled to relief and that the likelihood of irreparable harm renders an available remedy at law inadequate. HECKLER v. DAY 125 104 Marshall, J., dissenting B The dominant rationale of the Court’s opinion is that an inconclusive debate in Congress during the past decade regarding the wisdom of establishing nationwide time limits on the Secretary’s review of disability applications clearly evinces the Legislature’s hostility to the statewide remedy ordered by the District Court. The postenactment legislative history emphasized by the Secretary and the majority has little relevance to the task before us. If any legislative history were helpful, it would be the history of the statutory provision that first accorded claimants a right to review of adverse determinations and a “reasonable . . . opportunity for a hearing.” Act of Aug. 10, 1939, ch. 666, §201, 53 Stat. 1368.5 That provision has remained intact for 45 years. Although Congress has amended § 205(b) in various respects on seven occasions, it has repeatedly reenacted the “right to a hearing” provision without change or limitation,6 and has done so over the past decade with a full awareness that courts were enjoining unreasonable delays as con 5 The legislative history of § 205(b) is sparse, but generally supports respondents’ position. The bill embodying the “right to a hearing” provision was intended “to strengthen and extend the principles and objectives of the Social Security Act.” H. R. Rep. No. 728, 76th Cong., 1st Sess., 5 (1939). The agency charged with implementation of the Act believed the timely provision of hearings to be “the essence of the task to be performed.” Federal Security Agency, Social Security Board, Basic Provisions Adopted by the Social Security Board for the Hearing and Review of Claims (1940), reprinted in Attorney General’s Committee on Administrative Procedure, Administrative Procedure in Government Agencies, S. Doc. No. 10, 77th Cong., 1st Sess., pt. 3, p. 37 (1941). The Social Security Board stated that all hearings should be held within 30 days of request. Id., at 45. 6 Act of Aug. 28, 1950, ch. 809, § 108(a), 64 Stat. 518; Act of Aug. 1, 1956, Pub. L. 880, § 111, 70 Stat. 831; Act of July 30, 1965, Pub. L. 89-97, § 308(d)(9), 79 Stat. 379; Act of Jan. 2, 1976, Pub. L. 94-202, §4, 89 Stat. 1136; Act of June 9,1980, Pub. L. 96-265, § 305(a), 94 Stat. 457; Act of Jan. 12,1983, Pub. L. 97-455, § 4, 96 Stat. 2499; Social Security Amendments of 1983, Pub. L. 98-21, §§ 301(d)(1), 309(i)(l), 97 Stat. Ill, 117. 126 OCTOBER TERM, 1983 Marshall, J., dissenting 467 U. S. trary to the statutory purpose and violative of the rights conferred on disabled persons by the Social Security Act. This affirmative action deserves acknowledgment and weight. Cf. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U. S. 353, 379-382 (1982); Cannon v. University of Chicago, 441 U. S. 677, 696-698 (1979); Lorillard v. Pons, 434 U. S. 575, 580-581 (1978). The postenactment legislative history simply does not support the conclusion reached by the majority because Congress’ failure itself to remedy the delay problem cannot be read to exclude judicial responses. Congress has long been aware of efforts by several federal courts to compel the Secretary to accelerate her review of adverse disability determinations,7 and has not taken any action to curtail such judicial innovation.8 7 See, e. g., H. R. Conf. Rep. No. 96-944, p. 59 (1980) (Conference Report accompanying Social Security Disability Amendments of 1980, noting without criticism that in the absence of a statutory time limit on adjudication of claims, several District Courts had imposed such limits at the hearing level). Cases in which federal courts presented with unreasonable delays by the Secretary have imposed deadlines include Sharpe v. Harris, 621 F. 2d 530 (CA2 1980) (affirming time limits in Supplemental Security Income (SSI) hearings, decisions, and payments to New York State class); Blankenship v. Secretary of HEW, 587 F. 2d 329 (CA6 1978), on remand, 532 F.Supp. 739 (WD Ky. 1982), aff’d in part, stayed in part, 722 F. 2d 1282 (1983) (per curiam) (Title II and SSI claimants’ hearings must be held within 180 days; those whose benefits have been terminated have right to decision from Appeals Council within 90 days; order of interim payments after 180-day delay stayed pending decision in the present case), stayed, 465 U. S. 1301 (1984); Caswell v. Califano, 583 F. 2d 9 (CAI 1978) (90-day limit from request to hearing for Maine Title II claimants); Barnett v. Califano, 580 F. 2d 28 (CA2 1978) (order applicable to Vermont SSI disability claimants, requiring hearings in most cases within 90 days of request); White v. Mathews, 559 F. 2d 852 (CA2 1977) (Connecticut disability claimants entitled to hearing and final decision within 120 days; 1-year phase-in of time limit; interim payment of benefits ordered), cert, denied, 435 U. S. 908 (1978); Chagnon v. Schweiker, 560 F. Supp. 71 (Vt. 1982) (Secretary ordered to provide disability and SSI payments to those found eligible within 60 days after determination of eligibility by an AL J or the Appeals Coun-[Footnote 8 is on p. 127] HECKLER v. DAY 127 104 Marshall, J., dissenting What insight can be gleaned from the recent history supports the proposition that the District Court’s statewide prospective injunction setting time limits for reconsideration cil); Crosby v. Social Security Administration, 550 F. Supp. 1278 (Mass. 1982) (Title II and SSI disability claimants have right to a decision within 180 days of request for a hearing (plus time attributable to specified reasonable causes for delay) and to award of interim benefits if deadline not met), appeal pending, No. 83-1077 (CAI). But see Wright v. Calif ano, 587 F. 2d 345 (CA7 1978) (reversing order to phase in time limits for review of disputed old-age and survivors’ benefits claims, finding delays not so unreasonable as to justify court’s exercise of equitable power). 8 The only congressional suggestion of disapproval of court-ordered timely hearings that the majority has cited, ante, at 114-115, and n. 25, when read in context, supports only the inference that Congress chose not to “assert its power to give the district courts more specific direction,” White v. Mathews, supra, at 861. If the Committee’s remarks are at all germane to our discussion, then it is surely relevant that the Committee reported favorably on a proposed amendment to the Social Security Act that would have limited courts’ injunctive authority in remedying delay, an amendment that Congress chose not to enact. H. R. 6181, § 10, 97th Cong., 2d Sess. (1982). Moreover, in expressing its disapproval of the Blankenship decision, see ante at 115, and n. 25, the Committee appeared to distinguish that decision, which involved a nationwide remedial order, from six other court orders which “apply only in the areas under the jurisdiction of the court.” H. R. Rep. No. 97-588, p. 19 (1982). Finally, the Committee’s concern that strict time limits “could result in incorrect determinations because time was not available to obtain needed medical evidence or to reach well-reasoned decisions,” id., at 20, is accommodated in the present case by the tolling provisions in the District Court’s order and by the absence of any time limits on the rendering of hearing decisions. In fact, since the District Court’s order, Congress can be said to have endorsed the courts’ conclusion that claimants should not bear the entire burden of delay by the Secretary. The 97th Congress substantially enhanced the protection of persons, like respondents Day and Maurais, who have been receiving Title II benefits but whom the Secretary determines are no longer disabled within the meaning of the SSA. If they appeal the Secretary’s initial determination, they may elect to continue to receive payments during the pendency of the appeal, subject to return of any overpayment. Act of Jan. 12, 1983, Pub. L. 97-455, § 2, 96 Stat. 2498, 42 U. S. C. § 423(g). The Senate Committee Report explained that “some emergency relief is warranted for workers who are having benefits terminated by State agencies and then—in more than half the cases appealed— 128 OCTOBER TERM, 1983 Marshall, J., dissenting 467 U. S. determinations and hearings, far from being inconsistent with “repeated congressional rejection of the imposition of mandatory deadlines on agency adjudication of disputed disability claims,” ante, at 119, effectively accommodates Congress’ concern that review of disputed disability determinations be both accurate and expeditious. While it is correct that Congress hitherto has not enacted a nationwide standard in statutory form, that inaction is relevant to the equitable remedy under review only if statutory nationwide time limits are functionally no different from time limits imposed by a court on the operations within one State. Clearly, they are not. A statutory response is inflexible, requires a concomitant commitment by Congress to provide the resources to enable the Secretary to comply with the standard across the Nation, and is difficult to amend in response to changing experience. A court-ordered timetable is a flexible response to a particular factual record. It can be narrowly tailored to accommodate both the Secretary’s obligation and the claimants’ rights within the framework of resources and practices in a defined jurisdiction. If new factual developments alter the equitable balance, a court can modify relief. See Fed. Rule Civ. Proc. 60(b)(5); New York Assn, for Retarded Children, Inc. v. Carey, 706 F. 2d 956, 967 (CA2), cert, denied, 464 U. S. 915 (1983). Congress’ discussion and inaction might be relevant if, in rejecting a statutory remedy, Congress also rejected the existence of the problem. If any theme emerges from the postenactment legislative history, however, it is that delay is inconsistent with the Social Security Act, and imposition of having their benefits reinstated by an ALJ.” S. Rep. No. 97-648, p. 6 (1982). Although passed as an interim measure expiring in June 1984, the 98th Congress has moved to make continuation of benefits permanent. The Social Security Disability Benefits Reform Act of 1984, H. R. 3755, §223(g), 98th Cong., 2d Sess. (1984), has passed the House and has been read twice in the Senate. See also Brief for the Alliance of Social Security Disability Recipients et al. as Amici Curiae. HECKLER v. DAY 129 104 Marshall, J., dissenting deadlines would be consistent.9 Congress repeatedly suggested to the Secretary that she formulate standards and report back to Congress on the feasibility of time limits.10 The Secretary repeatedly assured Congress that administrative steps would reduce hearing delays to an acceptable level.11 9 Had the Secretary adopted mandatory time limits pursuant to her rulemaking authority, and was now facing a challenge rather than bringing one, I have no doubt that she would be citing this same legislative history for the proposition that Congress thought time limits consistent with the Social Security Act. Cf. Heckler v. Campbell, 461 U. S. 458 (1983). In Campbell, the Court upheld the Secretary’s reliance on medical-vocational guidelines, noting that since amending the Social Security Act to provide for disability benefits in 1954, Congress repeatedly suggested that the Secretary adopt rules defining the criteria for evaluating disability. “While these sources do not establish the original congressional intent, they indicate that later Congresses perceived that regulations such as the guidelines would be consistent with the statute.” Id., at 466, n. 10. The same inferences are available to the Court in the present case. 10 See, e. g., Pub. L. 96-265, §308, 94 Stat. 458, note following 42 U. S. C. § 401. The Social Security Disability Amendments of 1980 required the Secretary to report to Congress “recommending the establishment of appropriate time limitations governing decisions on claims for benefits under title II of the Social Security Act. . . tak[ing] into account both the need for expeditious processing. . . and the need to assure that all such claims will be thoroughly considered and accurately determined.” 11 See, e. g., H. R. Rep. No. 94-679, p. 2 (1975) (relying on agency’s estimate that a limited reform bill could reduce hearing backlog by 3,000 cases a month “so that in 18 months cases can be adjudicated within 90 days”); S. Rep. No. 94-550, p. 3 (1975) (same); Delays in Social Security Appeals, Hearings before Subcommittee on Social Security of the House Committee on Ways and Means, 94th Cong., 1st Sess., 74 (1975) (assurances of SSA Commissioner Cardwell that backlog could be brought under control and hearings scheduled within 90 days of request by June 1977). The Secretary has given similar assurances in litigating challenges to delays in the review process. See, e. g., Sharpe v. Harris, 621 F. 2d, at 531; White v. Mathews, 434 F. Supp. 1252, 1256-1257 (Conn. 1976), aff’d, 559 F. 2d 852 (CA2 1977); Crosby v. Social Security Administration, supra, at 1282. In the present case, the Secretary opposed the plaintiffs’ motion for summary judgment on the issue of liability in part on the ground that she was ready to issue regulations setting 90-day hearing deadlines, and the court should therefore abstain. App. to Pet. for Cert. 18a-19a. 130 OCTOBER TERM, 1983 Marshall, J., dissenting 467 U. S. In fact, albeit under court pressure, the Secretary published proposed rules in the Federal Register in 1980, setting nationwide time limits on the review process, and in 1981 characterized revised rules as “realistic [time limits], which we plan to achieve, and for which we expect to be held accountable,” and as “time limits which can and should be achieved in the operation of the adjudicatory system as it currently exists,” without “significantly greater resources” or “decreases in decisional accuracy.”12 In sum, for several independent reasons, Congress’ reluctance to establish nationwide time limits within which the Secretary must resolve disputed disability claims does not support the inference that Congress disapproves the exercise by federal courts of their equitable power to ensure that disability claimants in particular jurisdictions are not deprived of their statutory entitlements. If any aspect of the postenactment legislative history of § 205(b) of the Social Security 12 Subcommittee on Social Security of the House Committee on Ways and Means, Status of the Disability Insurance Program, 97th Cong., 1st Sess., 45-46 (Comm. Print 1981) (hereinafter 1981 Comm. Print) (response of Social Security Commissioner Driver to Rep. Pickle). The proposed rulemaking set a 90-day limit on hearings, subject to exceptions very similar to the nine exceptions in the present case, and required that hearing decisions issue within 30 days after a hearing is held and the record closed. 45 Fed. Reg. 12838-12839 (1980). Reporting to Congress 10 months later, the Secretary recommended 150 days from application for reconsideration to decision, and 165 days from request for a hearing to issuing a decision, because experience had indicated that, nationwide, the agency could provide hearings within 90 days only in about 70% of the cases, and issue decisions within 30 days in about 80% of the cases. U. S. Dept, of Health and Human Services, Report to Congress, Implementation of Section 308, Public Law 96-265 (Oct. 21, 1980), reprinted in 1981 Comm. Print, at 43. Whether Congress might have acted affirmatively but for the Secretary’s assurances is a matter for conjecture, but it is as valid an inference as the majority’s inference that Congress’ failure to enact nationwide deadlines, or to order the Secretary to do so pursuant to her rulemaking authority, is an affirmative rejection of the proposition that a claimant’s § 205(b) right to a timely hearing should be effectuated through promulgation of time limits. HECKLER v. DAY 131 104 Marshall, J., dissenting Act bears directly on the problem before us, it is the fact that Congress has repeatedly reenacted the provision with the awareness that the courts had been ordering the Secretary to comply with time limits when necessary to prevent unreasonable delays in providing reconsiderations and hearings. There is thus no basis for the majority’s conclusion that the equitable remedy ordered by the District Court in this case is barred by implication. Ill Because the District Court’s remedy is barred neither by an explicit statutory restriction, nor by implication, it should be upheld unless it constitutes an abuse of discretion. The abuse-of-discretion standard is not toothless in this context. We have cautioned the lower federal courts against “engrafting their own notions of proper procedures upon agencies entrusted with substantive functions by Congress.” Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519, 525 (1978). Congress has mandated hearings on disputed disability determinations, but has committed implementation of the review and hearing process to the Secretary. I agree that the Secretary has substantial discretion, with which the courts should not interfere, in determining how to comply with her statutory obligations. These general principles of judicial deference to agency discretion in devising procedures to achieve legislatively defined objectives are reinforced by some pragmatic considerations. Excepting, of course, those cases where denial of benefits rises to the level of violations of due process, I would agree that the problem of delay may at times not be susceptible to judicial solution. For example, when crowded administrative dockets are directly linked to limited congressional appropriations and lack of personnel, the only solution may lie in the hands of Congress. Similarly, when delays are directly linked to the fairness and accuracy of the adjudicatory process—for example, when delays result from the need to gather additional medical evidence relevant to the core issue 132 OCTOBER TERM, 1983 Marshall, J., dissenting 467 U. S. of disability—only the agency charged with determining disability within the terms of the statute may be able to alleviate the problem. On the other hand, the Secretary’s discretion cannot be boundless, and courts must determine whether her actions are sufficient to effectuate the individual entitlements created by Congress. Therefore, many situations quite appropriately call for judicial intervention. For example, when a standard for processing similar cases can be established from the agency’s own records, lengthy delays beyond that norm may indicate a dilatory agency response inconsistent with the statutory directive to provide a claimant a timely hearing. Similarly, if the agency’s records disclose specific inefficiencies or inactivity that bear no definable relationship to resource constraints or the need to ensure accurate decisionmaking, courts would be remiss in deferring to the agency’s unreasonably dilatory processing of claimants’ requests for review. The record in the present case supports the conclusion that the District Court tailored its remedy to respond to causes of delay that are properly susceptible to judicial scrutiny and solution. The District Court considered record evidence of the agency’s standard for processing disability hearing requests. The Secretary offered the 90-day figure as her established policy for scheduling hearings. Prior to the District Court’s order, she provided hearings within that time in only 57% of the cases, with a 2- to 9-month range of delay. App. to Pet. for Cert. 15a. Yet the Secretary did not complain that she was prevented from complying with her own policy because of lack of resources. To the contrary, she stated that she had the proper complement of ALJs needed to conduct Title II disability hearings in Vermont.13 There 13 The Secretary hypothesized four categories of reasons for not scheduling hearings within 90 days: lack of claimant cooperation in providing necessary information; delay in response from medical sources cited by the HECKLER v. DAY 138 104 Marshall, J., dissenting fore, when the District Court ordered relief, no record evidence suggested that the Secretary would have difficulty complying. When the District Court turned its attention to delays in the reconsideration process, it based its order on 77 representative case summaries provided by the Secretary. Again, the Secretary’s own standard was disposition in less than 90 days. The court accepted her description of the “complex and time-consuming” reconsideration process, which encompasses a de novo review of the existing record and any necessary supplemental evidence. The court therefore allowed a “reasonable time for locating the claim folder, forwarding it to the appropriate agency, obtaining and assessing additional evidence, and generating notices.” Id., at 29a. In each of the 27 cases in which reconsideration took longer than 90 days, however, the court found “periods of unexplained delay, not directly attributable to necessary steps in the reconsideration process.” Id., at 28a. It further found that, “when the explained delays in the case summaries are subtracted, most, if not all, of the cases could have been completed within 90 days.” Ibid, (emphasis in original). Thus, far from imposing an arbitrary deadline on an embattled agency, the court looked first to the standard adopted by the agency itself for meeting its statutory obligation to provide timely hearings within the constraints of the resources available to it. Further, the court explicitly rejected the respondents’ contentions that delays beyond a specific number of days violated the statute, and that the mere passage of time justified the extraordinary relief sought by the plaintiff claimant; logistical and scheduling problems due to distant travel; and agency assistance to claimants in obtaining complex and specialized medical development. Answers to Interrogatories Nos. 23, 24, App. 52. The Secretary provided no evidence that any of these reasons caused delays in scheduling the class representatives’ hearings. 134 OCTOBER TERM, 1983 Marshall, J., dissenting 467 U. S. class. App. 99-100. Rather, the court framed the question as the reasonableness of the delays.14 The court’s demands to the parties over a 3-year period to produce a record sufficient to answer the question presented15 evinces its reluctance to substitute its own sense of proper agency procedure for that of the Secretary. The court’s remedy similarly reflects its sensitivity to the special difficulties of administering the massive Social Security system, and to the challenges the Secretary faces in meeting the administrative goals of accuracy and promptness. Cf. Califano v. Boles, 443 U. S. 282, 285 (1979). By exempting from its order circumstances in which the agency needed to gather medical evidence and reports, the court responded to the Secretary’s concern that she not be forced to sacrifice accuracy for the sake of providing more expeditious hearings. By exempting circumstances in which the claimant failed to cooperate in the process or contributed to the delay, the court accommodated the Secretary’s concern that 14 Midway through the litigation, the court found the record “devoid of information concerning the reasons why the delays occurred. The plaintiffs have recognized that there will be times when the delay is either requested by the recipients to enable them to provide additional information or is caused by the recipients’ failure to cooperate with the Secretary’s requests. Similarly, the Secretary has acknowledged that delays may have been the result of increased case-load or insufficient staffing. It is clear, then, that the record is inconclusive with respect to the reasonableness of the delays. And since the reasonableness of the delays is the prime question before the court, the motions for summary judgment must be denied.” Memorandum Decision of July 14, 1980, App. 99-100. Only after continued discovery did the court rule that delays beyond 90 days were unreasonable. App. to Pet. for Cert. 28a-29a. 16 In response to plaintiffs’ third request for interrogatories, seeking the data demanded by Judge Holden, the Secretary chose to submit 77 randomly selected disability reconsideration cases selected by her from a total of 453 reconsiderations performed between October 1, 1977, and January 31, 1980. Defendant’s Answers to Third Interrogatories, Mar. 30, 1981, App. 105-149, 193-195. HECKLER v. DAY 135 104 Marshall, J., dissenting she be permitted the degree of flexibility required in the best interests of the claimants as well as the agency. And, of course, a significant accommodation to the Secretary’s concern for accurate determinations in the court’s order is its total exemption of the decisionmaking, as opposed to the information-gathering, process. There is no time limit whatsoever placed on ALJs’ deliberations and issuance of decisions. ALJs have sufficient time to deliberate to ensure accurate decisions, and to schedule new consultative examinations if additional evidence is required. Finally, the consequences of the injunction are a further indication of the reasonableness of the court’s interpretation of the statutory mandate. Cf. Califano v. Yamasaki, 442 U. S., at 697. During the 28 months in which a hearing injunction has been in effect, the Secretary has met the standard in all but one case, without additional allocation of resources and subsequent adverse impact elsewhere in the Social Security Title II disability claims system. Brief for Respondents 30, n. 32; Tr. of Oral Arg. 33, 51. This record suggests both that the injunction has not had the slightest impact on the Secretary’s nationwide management of the disability review process, and that the injunction has had the desired effect of enforcing disabled Vermonters’ rights to timely hearings. A remedy manifestly attentive to the Secretary’s practical and policy concerns should not be held to be an abuse of discretion. The District Court’s order applied only to delay that was found as fact not to be the “direct and foreseeable consequenc[e]... of the conscientious implementation of the Social Security Act.” Brief for Petitioner 33. Given the additional record evidence that 21.3% of the initial determinations that a claimant was not disabled within the meaning of the Social Security Act were found on reconsideration to be erroneous, and 56.2% of the decisions were reversed at the hearing stage, App. 53, the court properly responded to the 136 OCTOBER TERM, 1983 Marshall, J., dissenting 467 U. S. special urgency of enjoining unreasonable barriers to claimants’ receipt of benefits mandated by Congress.16 IV In summary, the relief ordered in this case was founded on three correct premises. First, a federal court has a responsibility to enforce the right to a hearing expressly granted in the Social Security Act. The Act requires that such a hearing be timely. Second, the mere length of processing times does not constitute an adequate basis for classwide injunctive relief, for the delay may be attributable to reasons related to the Secretary’s mandate to make accurate as well as expeditious disability determinations within the constraints of the resources at her disposal. However, if the causes of delay are unrelated to the adjudicative process, the delay is unreasonable. Third, the unreasonableness of delay is of magnified significance when the record establishes that more than half of the Vermont claimants who pursue their right to an administrative hearing are found to have been disabled and to be entitled to the payments initially denied by the Secretary. By definition, a disabled person has been unable “to engage in any substantial gainful activity,” 42 U. S. C. § 423(d)(1)(A) (emphasis supplied), and deprivation of income works hardships that cannot adequately be compensated by 16 The significance we place on the reversal rate must be tempered by the fact that the administrative appeals process permits introduction of additional evidence of disability at each stage. Therefore, a denial of disability status at one stage could well have been “correct” based on the evidence available to the decisionmaker. Cf. Mathews v. Eldridge, 424 U. S. 319, 346-347 (1976). Nonetheless, the fact remains that hundreds of disabled Vermonters endure grave hardship because they do not receive entitlements during the delayed review process. The Government has an obligation to the rightful beneficiaries of its insurance program. Members of the plaintiff class were once workers, paying into the Social Security system for the required number of years to earn entitlement to income when disabling illness or accident keeps them from the workplace. 137 104 HECKLER v. DAY Marshall, J., dissenting retroactive payments following a delayed decision in his or her favor. Therefore, in the face of irreparable harm to the plaintiff class, which has established a statutory right to relief, a federal court properly may order injunctive relief, and properly did so in the present case. I dissent. 138 OCTOBER TERM, 1983 Syllabus 467 U. S. THREE AFFILIATED TRIBES OF THE FORT BERTHOLD RESERVATION v. WOLD ENGINEERING, P. C., et al. CERTIORARI TO THE SUPREME COURT OF NORTH DAKOTA No. 82-629. Argued November 29, 1983—Decided May 29, 1984 The North Dakota statute (Chapter 27-19) governing the Indian civil jurisdiction of the state courts provides that jurisdiction shall extend “over all civil causes of action which arise on an Indian reservation upon acceptance by Indian citizens.” North Dakota’s Enabling Act provides that all Indian land “shall remain under the absolute jurisdiction and control of Congress.” Petitioner Indian Tribe, which had not accepted state civil jurisdiction under Chapter 27-19, employed respondent Wold Engineering (hereafter respondent) to design and build a water-supply system on petitioner’s reservation in North Dakota. When the project was completed, it did not perform to petitioner’s satisfaction, and petitioner sued respondent in a North Dakota state court for negligence and breach of contract. At the time suit was filed, petitioner’s tribal court did not have jurisdiction over a claim by an Indian against a non-Indian in the absence of an agreement by the parties. Although the subject matter of petitioner’s complaint was within the general scope of the state court’s jurisdiction, that court granted respondent’s motion to dismiss the complaint on the ground that the court lacked subject-matter jurisdiction over any claim arising in Indian country, including a claim by an Indian against a non-Indian. The North Dakota Supreme Court affirmed. Interpreting Chapter 27-19 to disclaim state-court jurisdiction over a claim against a non-Indian by an Indian tribe that had not accepted jurisdiction under the statute, the court determined that the North Dakota Legislature had disclaimed jurisdiction pursuant to the federal statute (Pub. L. 280) governing state jurisdiction over Indian country and that such disclaimer, because it had been authorized by Pub. L. 280, did not violate either the North Dakota or Federal Constitution. The court rejected petitioner’s argument that the jurisdiction that it had recognized in Vermillion v. Spotted Elk, 85 N. W. 2d 432—wherein it was held that the existing jurisdictional disclaimers in the State’s Enabling Act and Constitution foreclosed civil jurisdiction over Indian country only in cases involving interests in Indian lands themselves—had not been extinguished altogether and that the North Dakota courts possessed “residuary jurisdiction” over a claim by an Indian against a non-Indian following the enactment of Pub. L. 280 and the Civil Rights Act of 1968, which amended THREE AFFILIATED TRIBES v. WOLD ENGINEERING 139 138 Syllabus Pub. L. 280 to require that all subsequent assertions of jurisdiction be preceded by tribal consent. The court also rejected petitioner’s argument that to prohibit a suit such as petitioner’s would violate the Equal Protection Clause of the Fourteenth Amendment and deny petitioner equal access to the courts in violation of the North Dakota Constitution. Held: 1. No federal law or policy required the North Dakota courts to forgo in this case the jurisdiction recognized in Vermillion, supra. Pp. 147-151. (a) The exercise of state-court jurisdiction in this case would not interfere with the right of tribal Indians to govern themselves under their own laws. As a general matter, tribal self-government is not impeded when a State allows an Indian to seek relief against a non-Indian concerning a claim arising in Indian country. The exercise of state jurisdiction is particularly compatible with tribal autonomy when, as here, the suit is brought by the tribe itself and the tribal court lacked jurisdiction over the claim at the time the suit was instituted. Pp. 147-149. (b) Nor would the exercise of state jurisdiction here be inconsistent with the federal and tribal interests reflected in North Dakota’s Enabling Act or in Pub. L. 280. The legislative record suggests only that the Enabling Act’s phrase “absolute [congressional] jurisdiction and control” was meant to foreclose state regulation and taxation of Indians and their lands, not that Indians were to be prohibited from entering state courts to pursue judicial remedies against non-Indians. Public Law 280 does not either require North Dakota to disclaim the basic jurisdiction recognized in Vermillion or authorize it to do so. Nothing in Pub. L. 280’s language or legislative history indicates that it was meant to divest States of pre-existing and otherwise lawfully assumed jurisdiction. Pp. 149-151. 2. Where it is uncertain whether the North Dakota Supreme Court’s interpretation of Chapter 27-19 rested on a misconception of federal law, its judgment will be vacated, and the case will be remanded to that court for reconsideration of the state-law question. Pp. 151-158. (a) The court’s incorrect assumption that Pub. L. 280 and the Civil Rights Act of 1968 either authorized North Dakota to disclaim jurisdiction or affirmatively forbade the exercise of jurisdiction absent tribal consent appears to have been the sole basis relied upon by the court to avoid holding the jurisdictional disclaimer unconstitutional as applied in this case. Pp. 154-155. (b) The manner in which the court rejected the availability of “residuary jurisdiction” leaves open the possibility that, despite the court’s references to state law, it regarded federal law as an affirmative 140 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. bar to the exercise of jurisdiction here and interpreted state law to avoid a perceived conflict. Pp. 155-157. (c) The conclusion that the North Dakota Supreme Court’s statelaw decision may have rested on federal law is buttressed by prudential considerations. If that court is not given an opportunity to reconsider its conclusions with the proper understanding of federal law, this Court, contrary to the fundamental rule that it will not reach constitutional questions in advance of the necessity of deciding them, will be required to decide whether North Dakota has denied petitioner equal protection under the Fourteenth Amendment. Pp. 157-158. 321 N. W. 2d 510, vacated and remanded. Blackmun, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, White, Marshall, Powell, and O’Connor, JJ., joined. Rehnquist, J., filed a dissenting opinion, in which Stevens, J., joined, post, p. 159. Raymond Cross argued the cause for petitioner. With him on the briefs was John 0. Holm. Deputy Solicitor General Claiborne argued the cause for the United States as amicus curiae in support of petitioner. With him on the brief were Solicitor General Lee, Acting Assistant Attorney General Habicht, and Edwin S. Kneedler. Hugh McCutcheon argued the cause for respondents and filed a brief for respondent Wold Engineering, P. C.* Justice Blackmun delivered the opinion of the Court. This litigation presents issues of state-court civil jurisdiction over a claim asserted by an Indian tribe. The case, as it comes to us, is somewhat unusual in a central respect: the Tribe seeks, rather than contests, state-court jurisdiction, and the non-Indian party is in opposition. Cf. Williams v. Lee, 358 U. S. 217 (1959). Chapter 27-19 of the North Dakota Century Code (1974) is entitled “Indian Civil Jurisdiction.” Section 27-19-01 of that *Briefs of amici curiae urging reversal were filed for the Standing Rock Sioux Tribe et al. by Reid Peyton Chambers; and for the Turtle Mountain Band of Chippewa Indians by Kim Jerome Gottschalk and Richard B. Collins. THREE AFFILIATED TRIBES v. WOLD ENGINEERING 141 138 Opinion of the Court Code provides that the jurisdiction of North Dakota courts shall extend “over all civil causes of action which arise on an Indian reservation upon acceptance by Indian citizens.” In this case, the Supreme Court of North Dakota interpreted Chapter 27-19 to disclaim state-court jurisdiction over a claim (against a non-Indian) by an Indian Tribe that had not accepted jurisdiction under the statute. The court determined that the North Dakota Legislature had disclaimed jurisdiction pursuant to the principal federal statute governing state jurisdiction over Indian country, namely, the Act of Aug. 15, 1953, 67 Stat. 588, as amended, 28 U. S. C. § 1360, commonly known as Pub. L. 280. The court further concluded that the jurisdictional disclaimer, inasmuch as it was authorized by Pub. L. 280, did not run afoul of the North Dakota or Federal Constitutions. Because the North Dakota Supreme Court’s interpretation of Chapter 27-19 and its accompanying constitutional analysis appear to us to rest on a possible misunderstanding of Pub. L. 280, we vacate the court’s judgment and remand the case to allow reconsideration of the jurisdictional questions in the light of what we feel is the proper meaning of the federal statute. I A. Petitioner Three Affiliated Tribes of the Fort Berthold Reservation is a federally recognized Indian Tribe with its reservation in northwestern North Dakota. Act of Mar. 3, 1891, ch. 543, §23, 26 Stat. 1032. See City of New Town v. United States, 454 F. 2d 121 (CA8 1972). In 1974, petitioner employed respondent Wold Engineering, P. C. (hereafter respondent), a North Dakota corporation, to design and build the Four Bears Water System Project, a water-supply system located wholly within the reservation. The project was completed in 1977 but it did not perform to petitioner’s satisfaction. In 1980, petitioner sued respondent in a North Dakota state court for negligence and breach of contract. At the time the suit was filed, petitioner’s tribal court did not have 142 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. jurisdiction over a claim by an Indian against a non-Indian in the absence of an agreement by the parties. Tribal Code, ch. II, § 1(a).1 The subject matter of petitioner’s complaint, however, clearly fell within the scope of the state trial court’s general jurisdiction. See N. D. Const., Art. VI, §8; N. D. Cent. Code § 27-05-06 (1974 and Supp. 1983). After counter-claiming for petitioner’s alleged failure to complete its payments on the water-supply system, respondent moved to dismiss petitioner’s complaint on the ground that the trial court lacked subject-matter jurisdiction over any claim arising in Indian country. B. At this point, in order to place respondent’s jurisdictional argument in perspective, it is desirable to review the somewhat erratic course of federal and state law governing North Dakota’s jurisdiction over the State’s Indian reservations. Long before North Dakota became a State, this Court had recognized the general principle that Indian territories were beyond the legislative and judicial jurisdiction of state governments. Worcester v. Georgia, 6 Pet. 515 (1832); see generally Williams v. Lee, 358 U. S., at 218-222. That principle was reflected in the federal statute that granted statehood to North Dakota. Like many other other States in the Midwest and West,2 North Dakota was required to “disclaim all right and title ... to all lands lying within [the State] owned or held by any Indian or Indian tribes” as a condition for admission to the Union. Enabling Act of Feb. 22, 1889, § 4, cl. 2, 25 Stat. 677. The Act further provided that all such Indian land shall “remain subject to the disposition of the United States, and . . . shall remain under the absolute jurisdiction and control of the Congress of the United 1 Following the North Dakota Supreme Court’s decision in this case, petitioner’s Tribal Business Council amended the Tribal Code to grant the tribal court subject-matter jurisdiction over all civil causes of action arising within the boundaries of the Fort Berthold Reservation. 2 See F. Cohen, Handbook of Federal Indian Law 268, and h. 72 (1982 ed.). THREE AFFILIATED TRIBES v. WOLD ENGINEERING 143 138 Opinion of the Court States.” Ibid. North Dakota’s original Constitution contained, in identical terms, the required jurisdictional disclaimers. See N. D. Const., Art. XVI, §203, cl. 2 (1889). Federal restrictions on North Dakota’s jurisdiction over Indian country, however, were substantially eliminated in 1953 with the enactment of the aforementioned Pub. L. 280. See generally Washington v. Yakima Indian Nation, 439 U. S. 463, 471-474 (1979).3 Sections 2 and 4 of Pub. L. 280 gave five States full jurisdiction, with a stated minor exception as to each of two States, over civil and criminal actions involving Indians and arising in Indian country. 67 Stat. 588-589, codified, as amended, at 18 U. S. C. § 1162 and 28 U. S. C. §1360, respectively. Sections 6 and 7 gave all other States the option of assuming similar jurisdiction. Section 6 authorized States whose constitutions and statutes contained federally imposed jurisdictional restraints, like North Dakota’s, to amend their laws to assume jurisdiction. 67 Stat. 590, codified, as amended, at 25 U. S. C. §1324. Section 7 provided similar federal consent to any other State not having civil and criminal jurisdiction, but required such States to assume jurisdiction through “affirmative legislative action.” 67 Stat. 590. As originally enacted, Pub. L. 280 did not require States to obtain the consent of affected Indian tribes before assuming jurisdiction over them. Title IV of the Civil Rights Act of 1968 amended Pub. L. 280, however, to require that all subsequent assertions of jurisdiction be preceded by tribal consent. Pub. L. 90-284, §§401, 402, 406, 82 Stat. 78-80, codified at 25 U. S. C. §§ 1321, 1322, 1326. Even before North Dakota moved to amend its Constitution and assume full jurisdiction under Pub. L. 280, the North Dakota Supreme Court had taken an expansive view of the scope of state-court jurisdiction over Indians in Indian 3 Before that, however, Congress had vested North Dakota with certain criminal jurisdiction over the Devils Lake Reservation. Act of May 31, 1946, ch. 279, 60 Stat. 229. 144 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. country. In 1957, the court held that the existing jurisdictional disclaimers in the Enabling Act and the State’s Constitution foreclosed civil jurisdiction over Indian country only in cases involving interests in Indian lands themselves. Vermillion v. Spotted Elk, 85 N. W. 2d 432. The following year, 1958, North Dakota amended its Constitution to authorize its legislature to “provid[e] for the acceptance of such jurisdiction [over Indian country] as may be delegated to the State by Act of Congress.” N. D. Const., Art. XIII, §1, cl. 2. Finally, in 1963, the North Dakota Legislature enacted Chapter 27-19, the principal section of which provides: “In accordance with the provisions of Public Law 280 . . . and [the amended] North Dakota constitution, jurisdiction of the state of North Dakota shall be extended over all civil causes of action which arise on an Indian reservation upon acceptance by Indian citizens in a manner provided by this chapter. Upon acceptance the jurisdiction of the state shall be to the same extent that the state has jurisdiction over other civil causes of action, and those civil laws of this state that are of general application to private property shall have the same force and effect within such Indian reservation or Indian country as they have elsewhere within this state.” N. D. Cent. Code §27-19-01 (1974). On their face, both the 1958 amendment to the North Dakota Constitution and Chapter 27-19 appear to expand preexisting state jurisdiction over Indian country rather than to contract it. In In re Whiteshield, 124 N. W. 2d 694 (1963), however, the North Dakota Supreme Court reached the conclusion that Chapter 27-19 actually disclaimed all jurisdiction over claims arising in Indian country absent Indian consent. In subsequent decisions, that court adhered to its general view that without Indian consent “the State has no jurisdiction over any civil cause arising on an Indian reservation in this State.” White Eagle v. Dorgan, 209 N. W. 2d 621, 623 THREE AFFILIATED TRIBES v. WOLD ENGINEERING 145 138 Opinion of the Court (1973).4 In each case in which the North Dakota Supreme Court declined to recognize jurisdiction, however, the defendant was an Indian; the court never had held squarely that an Indian could not maintain an action against a non-Indian in state court for a claim arising in Indian country.5 C. Respondent’s motion to dismiss rested on the restrictive jurisdictional principles of Whiteshield and its successors. Because the petitioner Tribe at no point has consented to state-court jurisdiction under Chapter 27-19 over the Fort Berthold Reservation, respondent argued that the trial court lacked jurisdiction over petitioner’s claim under Chapter 27-19 and the amended provisions of Pub. L. 280. Petitioner opposed respondent’s motion to dismiss on the ground, inter alia, that the tribal consent requirements of the Civil Rights Act of 1968 were not meant to apply to a suit brought by a tribal government like petitioner. The trial court rejected petitioner’s arguments and granted the motion to dismiss the suit for lack of jurisdiction, but did so without prejudice to a renewal of the action following compliance with the state and federal consent requirements. App. to Pet. for Cert. la. On appeal, the North Dakota Supreme Court affirmed. 321 N. W. 2d 510 (1982). Petitioner argued that the jurisdiction recognized in Vermillion had not been extinguished altogether and that the North Dakota courts possessed “residuary jurisdiction” over a claim by an Indian against a non-Indian following the enactment of Pub. L. 280 and the Civil Rights Act of 1968. The court rejected this argument, adhering instead to its conclusion in Nelson v. Dubois, 232 4 In Goumeau v. Smith, 207 N. W. 2d 256, 258 (1973), the court ex- pressly held that Vermillion “no longer states the rule to be applied . . . in a case between Indians arising out of use of the public highways on an Indian reservation.” 8 In United States ex rel. Hall v. Hansen, 303 N. W. 2d 349, 350, and n. 3 (1981), however, the court did state in dictum that a state trial court lacked jurisdiction over a claim by an Indian against a non-Indian arising in Indian country. 146 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. N. W. 2d 54 (1975), that any residuary jurisdiction was preempted by the tribal consent requirements contained in the Civil Rights Act of 1968. After reviewing the history of North Dakota’s jurisdiction over Indian country, the court reaffirmed its prior holdings, observing that “we have no jurisdiction over civil causes of action arising within the exterior boundaries of an Indian reservation, unless the Indian citizens of the reservation vote to accept jurisdiction.” 321 N. W. 2d, at 512. The court also rejected petitioner’s argument that to prohibit an Indian plaintiff from suing a non-Indian in state court for a claim arising on an Indian reservation would violate the Equal Protection Clause of the Fourteenth Amendment and deny petitioner equal access to the courts, in violation of the North Dakota Constitution.6 The court relied on Washington v. Yakima Indian Nation, 439 U. S. 463 (1979), in which this Court rejected an equal protection challenge to a state jurisdictional statute that relied on tribal classifications. In Yakima Indian Nation the Court held that the unique legal status of Indian tribes under federal law permitted the Federal Government to single out tribal Indians in ways that otherwise might be unconstitutional, and that the state jurisdictional statute at issue there was insulated from strict scrutiny under the Equal Protection Clause because it was enacted under the authority of Pub. L. 280. 439 U. S., at 499-502. The North Dakota Supreme Court concluded: “Likewise, the people of North Dakota and the legislature were acting under explicit authority granted by Congress in the exercise of its federal power over Indians when our Con- 6 “All courts shall be open, and every man for any injury done him in his lands, goods, person or reputation shall have remedy by due process of law, and right and justice administered without sale, denial or delay.” N. D. Const., Art. I, §9. The State’s Constitution further provides that no citizen or class of citizens “shall... be granted privileges or immunities which upon the same terms shall not be granted to all citizens.” Art. I, §21. THREE AFFILIATED TRIBES v. WOLD ENGINEERING 147 138 Opinion of the Court stitution was amended and Chapter 27-19 . . . was enacted.” 321 N. W. 2d, at 513. As a result, any discrimination against Indian litigants did not violate the State or Federal Constitutions. Ibid. Because of the complexity and importance of the issue posed by the North Dakota Supreme Court’s decision, we granted certiorari. 461 U. S. 904 (1983). II Respondent does not dispute that petitioner’s claim comes within the scope of the civil jurisdiction recognized by the North Dakota court in its Vermillion ruling in 1957. Respondent advances two arguments in support of the North Dakota Supreme Court’s conclusion that state-court jurisdiction no longer extends so far. The first is that federal law precludes the state courts from asserting jurisdiction over petitioner’s claim. The second is that, regardless of federal law, the North Dakota Supreme Court has held that the trial court lacked jurisdiction as a matter of state law. We address these arguments in turn. A Although this Court has departed from the rigid demarcation of state and tribal authority laid down in 1832 in Worcester v. Georgia, 6 Pet. 515, the assertion of state authority over tribal reservations remains subject to “two independent but related barriers.”. White Mountain Apache Tribe v. Bracker, 448 U. S. 136, 142 (1980). First, a particular exercise of state authority may be foreclosed because it would undermine “‘the right of reservation Indians to make their own laws and be ruled by them.’” Ibid., quoting Williams n. Lee, 358 U. S., at 220. Second, state authority may be pre-empted by incompatible federal law. White Mountain, 448 U. S., at 142. Accord, New Mexico v. Mescalero Apache Tribe, 462 U. S. 324, 334, and n. 16 (1983); Ramah Navajo School Board, Inc. v. Bureau of Revenue, 458 U. S. 832, 837-838 (1982); McClanahan v. Arizona State Tax Comm’n, 148 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. 411 U. S. 164, 179 (1973). We do not believe that either of these barriers precludes North Dakota courts from entertaining a civil action by an Indian tribe against a non-Indian for a claim arising on an Indian reservation. Despite respondent’s arguments, we fail to see how the exercise of state-court jurisdiction in this case would interfere with the right of tribal Indians to govern themselves under their own laws. To be sure, the full breadth of state-court jurisdiction recognized in Vermillion cannot be squared with principles of tribal autonomy; to the extent that Vermillion permitted North Dakota state courts to exercise jurisdiction over claims by non-Indians against Indians or over claims between Indians, it intruded impermissibly on tribal selfgovernance. See Fisher n. District Court, 424 U. S. 382 (1976); Williams v. Lee, supra. This Court, however, repeatedly has approved the exercise of jurisdiction by state courts over claims by Indians against non-Indians, even when those claims arose in Indian country. See McClanahan n. Arizona State Tax Comm’n, 411 U. S., at 173 (dictum); Poafpybitty v. Skelly Oil Co., 390 U. S. 365 (1968); Williams v. Lee, 358 U. S., at 219 (dictum); United States v. Candelaria, 271 U. S. 432, 444 (1926); Felix v. Patrick, 145 U. S. 317, 332 (1892); Fellows n. Blacksmith, 19 How. 366 (1857).7 The interests implicated in such cases are very different from those present in Williams v. Lee, where a non-Indian sued an Indian in state court for debts incurred in Indian country, or in Fisher y. District Court, where this Court held that a tribal court had exclusive jurisdiction over an adoption proceeding in which all parties were tribal Indians residing on a reservation. As a general matter, tribal self-government is not impeded when a State allows an Indian to enter its courts 7 A number of state courts have recognized the right of Indians to bring suits in state courts against non-Indians for claims arising in Indian country. See, e. g., McCrea v. Busch, 164 Mont. 442, 524 P. 2d 781 (1974); Paiz v. Hughes, 76 N. M. 562, 417 P. 2d 51 (1966); Whiting v. Hoffine, 294 N. W. 2d 921, 923-924 (S. D. 1980). THREE AFFILIATED TRIBES v. WOLD ENGINEERING 149 138 Opinion of the Court on equal terms with other persons to seek relief against a non-Indian concerning a claim arising in Indian country. The exercise of state jurisdiction is particularly compatible with tribal autonomy when, as here, the suit is brought by the tribe itself and the tribal court lacked jurisdiction over the claim at the time the suit was instituted. Neither are we persuaded that the exercise of state jurisdiction here would be inconsistent with the federal and tribal interests reflected in North Dakota’s Enabling Act or in Pub. L. 280. As for the disclaimer provisions of the Enabling Act, the presence or absence of specific jurisdictional disclaimers rarely has had controlling significance in this Court’s past decisions about state jurisdiction over Indian affairs or activities on Indian lands. Arizona v. San Carlos Apache Tribe, 463 U. S. 545, 562 (1983); see F. Cohen, Handbook of Federal Indian Law 268 (1982 ed.).8 In this case, the sparse legislative record suggests only that the Enabling Act’s phrase “absolute [congressional] jurisdiction and control” was meant to foreclose state regulation and taxation of Indians and their lands, not that Indians were to be prohibited from entering state courts to pursue judicial remedies against non-Indians. See H. R. Rep. No. 1025, 50th Cong., 1st Sess., 8-9, 24 (1888). To the extent that the disclaimer language of the Enabling Act may be regarded as ambiguous, moreover, it is a settled principle of statutory construction that statutes passed for the benefit of dependent Indian tribes are to be liberally construed, with doubtful expressions being resolved in favor of the Indians. See, e. g., Bryan v. Itasca County, 426 U. S. 373, 392 (1976); Alaska Pacific Fisheries v. United States, 248 U. S. 78, 89 (1918). It would be contrary to this principle to resolve any ambiguity in the 8 In Organized Village of Kake v. Egan, 369 U. S. 60, 71 (1962), this Court held that the phrase “absolute jurisdiction and control” was not intended to oust States completely from all authority concerning Indian lands. See, however, McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164, 176, n. 15 (1973). 150 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. language of the Enabling Act in favor of a construction under which North Dakota could not provide a judicial forum for an Indian to obtain relief against a non-Indian. We also cannot subscribe to the view that Pub. L. 280 either required North Dakota to disclaim the basic jurisdiction recognized in Vermillion or authorized it to do so. This Court previously has recognized that Pub. L. 280 was intended to facilitate rather than to impede the transfer of jurisdictional authority to the States. Washington n. Yakima Indian Nation, 439 U. S., at 490; see also Bryan v. Itasca County, 426 U. S., at 383-390. Nothing in the language or legislative history of Pub. L. 280 indicates that it was meant to divest States of pre-existing and otherwise lawfully assumed jurisdiction.9 Section 6 of the federal statute authorized a State whose enabling Act and constitution contained jurisdictional disclaimers “to remove any legal impediment to the assumption of civil and criminal jurisdiction” (emphasis added). 67 Stat. 590, codified, as amended, at 25 U. S. C. § 1324. Similarly, § 7 gave congressional consent to the assumption of jurisdiction by any other State “not having jurisdiction.” 67 Stat. 590. By their terms, therefore, both §6 and § 7 were designed to eliminate obstacles to the assumption of jurisdiction rather than to require pre-existing jurisdiction to be disclaimed. Although the Civil Rights Act of 1968 amended Pub. L. 280 by adding tribal consent requirements, those requirements were not made retroactive;10 the 1968 amendments therefore did not displace jurisdiction pre- 9 Although Vermillion was decided after the enactment of Pub. L. 280, the North Dakota Supreme Court made clear that it was confirming preexisting jurisdiction rather than establishing a previously unavailable jurisdictional category. See Vermillion v. Spotted Elk, 85 N. W. 2d, at 435-436. 10See 25 U. S. C. §§ 1321(a), 1322(a), 1326; S. Rep. No. 721, 90th Cong., 1st Sess., 32 (1967) (additional views of Sen. Ervin); Goldberg, Public Law 280: The Limits of State Jurisdiction Over Reservation Indians, 22 UCLA L. Rev. 535, 551 (1975). THREE AFFILIATED TRIBES v. WOLD ENGINEERING 151 138 Opinion of the Court viously assumed under Pub. L. 280, much less jurisdiction assumed prior to and apart from Pub. L. 280. Similarly, while Pub. L. 280 authorized States to assume partial rather than full civil jurisdiction, see Washington v. Yakima Indian Nation, 439 U. S., at 493-499, nothing in Pub. L. 280 purports to authorize States to disclaim pre-existing jurisdiction. Indeed, the Civil Rights Act of 1968 granted States the authority to retrocede jurisdiction acquired under Pub. L. 280 precisely because Pub. L. 280 itself did not authorize such jurisdictional disclaimers.11 In sum, then, no federal law or policy required the North Dakota courts to forgo the jurisdiction recognized in Vermillion in this case. If the North Dakota Supreme Court’s jurisdictional ruling is to stand, it must be shown to rest on state rather than federal law. B This Court concededly has no authority to revise the North Dakota Supreme Court’s interpretation of state jurisdictional law. Only last Term, in Arizona v. San Carlos Apache Tribe, supra, we noted that “to the extent that a claimed bar to state jurisdiction ... is premised on the respective State Constitutions, that is a question of state law over which the state courts have binding authority.” 463 U. S., at 561. That principle is equally applicable, of course, with respect to jurisdictional bars grounded in state statutes. If the North Dakota Supreme Court’s decision that the trial court lacked jurisdiction in this case rested solely on state law, the only remaining issue before this Court would be petitioner’s argu 11 See 25 U. S. C. § 1323(a); 2 U. S. Dept, of Interior, Opinions of the Solicitor Relating to Indian Affairs, 1917-1974, pp. 1951-1952 (1979); see also Goldberg, supra, at 558-562. Although any assumption of jurisdiction pursuant to Pub. L. 280 must comply with that statute’s procedural requirements, see Kennedy v. District Court of Montana, 400 U. S. 423 (1971), Pub. L. 280’s requirements simply have no bearing on jurisdiction lawfully assumed prior to its enactment. 152 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. ment that the jurisdictional disclaimer here violates petitioner’s federal constitutional rights.12 It is equally well established, however, that this Court retains a role when a state court’s interpretation of state law has been influenced by an accompanying interpretation of federal law. In some instances, a state court may construe state law narrowly to avoid a perceived conflict with federal statutory or constitutional requirements. See, e. g., United Air Lines, Inc. v. Mahin, 410 U. S. 623, 630-632 (1973); State Tax Comm’n v. Van Cott, 306 U. S. 511, 513-515 (1939); Red Cross Line v. Atlantic Fruit Co., 264 U. S. 109, 120 (1924); see also San Diego Building Trades Council v. Garmon, 353 U. S. 26 (1957). In others, in contrast, the state court may construe state law broadly in the belief that federal law poses no barrier to the exercise of state authority. See, e. g., Standard Oil Co. v. Johnson, 316 U. S. 481 (1942). In both categories of cases, this Court has reviewed the federal question on which the state-law determination appears to have been premised. If the state court has proceeded on an incorrect perception of federal law, it has been this Court’s practice to vacate the judgment of the state court and remand the case so that the court may reconsider the state-law question free of misapprehensions about the scope of federal law.13 12 The United States and the Turtle Mountain Band of Chippewa Indians, each of whom has filed a brief amicus curiae in support of petitioner, suggest that Chapter 27-19 may violate 42 U. S. C. § 1981 to the extent that it precludes petitioner from maintaining its action in state court. Section 1981 provides in relevant part: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory . . . to sue ... as is enjoyed by white citizens.” Petitioner does not appear to have relied on § 1981 before the North Dakota Supreme Court, nor has it done so here. In light of our disposition of this case, we need not decide whether the § 1981 issue is properly before us or, if so, whether a violation of § 1981 has been made out. The Supreme Court of North Dakota is free, of course, to consider the applicability of § 1981 on remand if it deems the issue to be properly before it. 13 See 28 U. S. C. § 2106. In United Air Lines, Inc. v. Mahin, for example, two justices of the Illinois Supreme Court had construed a state tax THREE AFFILIATED TRIBES v. WOLD ENGINEERING 153 138 Opinion of the Court Here, a careful reading of the North Dakota Supreme Court’s opinion leaves us far from certain that the court’s present interpretation of Chapter 27-19 does not rest on a misconception of federal law. In determining the role played by that court’s understanding of federal law, we are guided by the jurisdictional principles that have come to govern our calculation of adequate and independent state grounds. In Michigan v. Long, 463 U. S. 1032 (1983), this Court ruled that “when ... a state court decision fairly appears ... to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so.” Id., at 1040-1041. Although petitioner’s constitutional challenge to the North Dakota Supreme Court’s judgment means that we do not face a question of our own jurisdiction, see Standard Oil Co. v. Johnson, 316 U. S., at 482-483, we believe that the same general interpretive principles properly apply here. The North Dakota Supreme Court’s opinion does state that the North Dakota Legislature “totally disclaimed jurisdiction over civil causes of action arising on an Indian reservation,” but it adds that the legislature did so “pursuant to Public Law 280,” “[u]nder the authority of Public Law 280,” and “under explicit authority granted by Congress in the exercise of its federal power over Indians.” 321 N. W. 2d, at 511, 513. There are at least two respects in which these references and other language in the court’s opinion leave it far less than clear that the North Dakota statute to avoid a perceived conflict with the dormant Commerce Clause. This Court held that the interpretation forgone by the Illinois Supreme Court would not have run afoul of the Commerce Clause, and therefore remanded the case “to avoid the risk of ‘an affirmance of a decision which might have been decided differently if the court below had felt free, under our decisions, to do so.’” 410 U. S., at 632, quoting Perkins n. Benguet Consolidated Mining Co., 342 U. S. 437, 443 (1952). 154 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. Supreme Court’s interpretation of Chapter 27-19 was not influenced by its understanding of federal law. First, the court’s treatment of petitioner’s constitutional claims strongly suggests that the court’s underlying interpretation of Chapter 27-19 would have been different if the court had realized from the outset that federal law does not insulate the present jurisdictional disclaimer from state and federal constitutional scrutiny. While we express no view about the merits of petitioner’s federal equal protection challenge, we note that the North Dakota Supreme Court rejected petitioner’s state and federal constitutional claims not because it viewed them as otherwise meritless, but because “the people of North Dakota and the legislature were acting under explicit authority granted by Congress in the exercise of its federal power over Indians” in disclaiming state jurisdiction. 321 N. W. 2d, at 513. The court had proceeded on a similar assumption before; in Goumeau v. Smith, 207 N. W. 2d 256 (1973), for example, the court rejected an Indian plaintiff’s jurisdictional claim based on the “open courts” provision of N. D. Const. Art. I, §9, because the tribal consent requirements of the Civil Rights Act of 1968 were taken to foreclose jurisdiction: “The courts of the State of North Dakota are open to all persons. But. . . Federal law prohibits State courts from assuming jurisdiction of civil actions involving Indians which arise on an Indian reservation, until such time as the Indians of that reservation have consented to such jurisdiction. Thus the courts of the State of North Dakota are open to Indians, if they consent to the courts’ jurisdiction as provided by law.” 207 N. W. 2d, at 259. The assumption that Pub. L. 280 and the Civil Rights Act of 1968 either authorized North Dakota to disclaim jurisdiction or affirmatively forbade the exercise of jurisdiction absent tribal consent is incorrect, for the reasons given above. That assumption, however, appears to have been the sole basis relied on by the North Dakota Supreme Court to avoid THREE AFFILIATED TRIBES v. WOLD ENGINEERING 155 138 Opinion of the Court holding the jurisdictional disclaimer unconstitutional as applied in this case. Because the North Dakota Supreme Court has adhered consistently to the policy of construing state statutes to avoid potential state and federal constitutional problems, see, e. g., State v. Kottenbroch, 319 N. W. 2d 465, 473 (1982); Paluck v. Board of County Comm’rs, 307 N. W. 2d 852, 856 (1981); Grace Lutheran Church v. North Dakota Employment Security Bureau, 294 N. W. 2d 767, 772 (1980); North American Coal Corp. v. Huber, 268 N. W. 2d 593, 596 (1978); Tang v. Ping, 209 N. W. 2d 624, 628 (1973), it is entirely possible that the court would have avoided any constitutional question by construing Chapter 27-19 not to disclaim jurisdiction here, and it is equally possible that the court will reconstrue Chapter 27-19 that way if it is given an opportunity to do so. Second, the manner in which the court rejected the availability of “residuary jurisdiction” leaves open the possibility that, despite the court’s references to state law, the court regarded federal law as an affirmative bar to the exercise of jurisdiction here. The court stated: “In essence, [petitioner] argues that North Dakota retained residuary jurisdiction over actions brought by Indians against non-Indians for civil wrongs committed on Indian lands. . . . That argument would be more convincing had the legislature of North Dakota not, pursuant to Public Law 280, totally disclaimed jurisdiction over civil causes of action arising on an Indian reservation. In re Whiteshield, 124 N. W. 2d 694 (N. D. 1963). In Nelson v. Dubois, 232 N. W. 2d 54 (N. D. 1975), . . . we rejected the concept of ‘residuary’ jurisdiction. We adhere to that decision today.” 321 N. W. 2d, at 511 (emphasis added). The court’s reliance on Nelson v. Dubois is suggestive because Dubois itself turned aside an attempt to invoke statecourt jurisdiction over Indian country on the ground that federal law barred the exercise of jurisdiction. Specifically, 156 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. the court held that it did not have “residuary jurisdiction” over a suit by non-Indians against Indians, even if the exercise of jurisdiction were assumed not to infringe on tribal self-governance under Williams v. Lee, because the tribal consent provisions of the Civil Rights Act of 1968 pre-empted any exercise of state jurisdiction except in accordance with the terms of that Act. 232 N. W. 2d, at 57-59. The court recognized that its holding deprived the plaintiffs of any forum for their suit, but added: “The solution to this most serious problem lies not with the State. Congress may amend its statutes; Indian tribes of this State may begin to assert their own jurisdiction. This State cannot exercise jurisdiction that it does not possess.” Id., at 59.14 As noted above, the Civil Rights Act of 1968 in no way bars the exercise of jurisdiction in this case. The court’s reliance on Nelson v. Dubois to dismiss petitioner’s jurisdictional 14 The court has made even more clear in other cases its view that Pub. L. 280, as amended by the 1968 Civil Rights Act, is an affirmative constraint on state jurisdiction. For example, in Schantz v. White Lightning, 231 N. W. 2d 812, 815-816 (1975), the court stated: “[A]ny change from the present [jurisdictional] case law would require action by the United States Congress. The appellants are asking this court to assume the duties and responsibilities which are vested solely in the United States Congress. The arguments presented should be addressed to that body. “The Congress has set out the mandatory procedure to be followed by the Indian Tribes and the State before the States may assume jurisdiction.. . . The Sioux Indians, not having accepted State jurisdiction as permitted and provided for by the congressional mandate and Chapter 27-19, we conclude that the State did not have, nor did it acquire, jurisdiction” (emphasis added). See United States ex rel. Hall v. Hansen, 303 N. W. 2d, at 350; Nelson v. Dubois, 232 N. W. 2d, at 61 (dissenting opinion); Goumeau v. Smith, 207 N. W. 2d, at 259; see also Poitra v. Demarrias, 502 F. 2d 23, 27 (CA8 1974), cert, denied, 421 U. S. 934 (1975); American Indian Agricultural Credit Consortium, Inc. v. Fredericks, 551 F. Supp. 1020, 1021-1022 (Colo. 1982). THREE AFFILIATED TRIBES v. WOLD ENGINEERING 157 138 Opinion of the Court claim suggests, however, that the court was proceeding on a contrary premise. In that event, it may well have adopted a restrictive interpretation of Chapter 27-19 to avoid a perceived conflict between state and federal jurisdictional mandates.15 By the same token, Nelson v. Dubois itself suggests that the court might recognize some measure of “residuary jurisdiction” here but for the mistaken belief that a federal jurisdictional impediment exists. Because we cannot exclude this possibility with any degree of confidence, the prudent course is to give the North Dakota Supreme Court an opportunity to express its views on Chapter 27-19 and thereby “avoid the risk of ‘an affirmance of a decision which might have been decided differently if the court below had felt free, under our decisions, to do so.’” United Air Lines, Inc. v. Muhin, 410 U. S., at 632, quoting Perkins v. Benguet Consolidated Mining Co., 342 U. S. 437, 443 (1952). Our conclusion that the North Dakota Supreme Court’s state-law decision may well have rested on federal law is buttressed by prudential considerations. Were we not to give the North Dakota Supreme Court an opportunity to reconsider its conclusions with the proper understanding of federal law, we would be required to decide whether North Dakota has denied petitioner equal protection under the Fourteenth Amendment by excluding it from state courts in a circumstance in which a non-Indian would be allowed to maintain a suit. It is a fundamental rule of judicial restraint, however, that this Court will not reach constitutional questions in advance of the necessity of deciding them. See, e. g., Leroy 15 In at least one instance, the North Dakota Supreme Court took care not to extend its restrictive jurisdictional holdings to the situation in which an Indian plaintiff brought suit against a non-Indian defendant in state court. See Schantz v. White Lightning, 231 N. W. 2d, at 814, n. 1 (rejecting broad formulation of jurisdictional issue because it “would require the consideration of a question if an Indian could sue a non-Indian”). The court also once stated flatly that “Indians have the right to sue non-Indians in State courts.” Rolette County v. Eltobgi, 221 N. W. 2d 645, 648 (1974). But see n. 5, supra. 158 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. v. Great Western United Corp., 443 U. S. 173, 181 (1979); Massachusetts v. Westcott, 431 U. S. 322, 323 (1977); Alexander v. Louisiana, 405 U. S. 625, 633 (1972); Ashwander v. TV A, 297 U. S. 288, 346-348 (1936) (concurring opinion); see also Whalen v. United States, 445 U. S. 684, 702 (1980) (Rehnquist, J., dissenting). This Court has relied on that principle in similar circumstances to resolve doubts about the independence of state-law decisions in favor of an interpretation that avoids a constitutional question. See, e. g., Black v. Cutter Laboratories, 351 U. S. 292, 299 (1956). The same prudential rule is properly employed in this case. If the North Dakota Supreme Court reinterprets Chapter 27-19 to permit petitioner to maintain its claim in the state courts, or if it concludes that Chapter 27-19 violates the State’s Constitution insofar as it bars jurisdiction in this case, neither that court nor this one will be required finally to reach petitioner’s federal constitutional challenge. Under these circumstances, our responsibility to avoid unnecessary constitutional adjudication demands that we resolve any uncertainty over the North Dakota Supreme Court’s decision in favor of the possibility that it was influenced by a misunderstanding of federal law.16 16 In addition, the practical cost of mistakenly concluding that federal law influenced the North Dakota Supreme Court’s treatment of Chapter 27-19 is far outweighed by the cost of mistakenly reaching the opposite conclusion. If the court’s misunderstanding of Pub. L. 280 in fact did not contribute to its interpretation of state law, the court is free to reinstate its former judgment on remand. See, e. g., United Air Lines, Inc. v. Mahin, 54 Ill. 2d 431, 298 N. E. 2d 161 (1973). In contrast, if the court’s understanding of federal law did play a role in its interpretation of Chapter 27-19 but we were to proceed on a contrary assumption, we would be depriving petitioner of a judicial forum that the North Dakota Supreme Court would make available if only it were given another opportunity to address the issue. When the cost of erring in one direction is so negligible and the cost of erring in the other is so great, we think that uncertainty about the federal basis for the state-law decision properly is resolved in favor of the conclusion that federal law played a material role. THREE AFFILIATED TRIBES v. WOLD ENGINEERING 159 138 Rehnquist, J., dissenting III It is important to recognize what we have not decided in this case today. We have made no ruling that Chapter 27-19 has any meaning other than the one assigned to it by the North Dakota Supreme Court. Neither have we decided whether, assuming that the North Dakota Supreme Court adheres to its current interpretation of Chapter 27-19, application of the statute to petitioner will deny petitioner federal equal protection or violate any other federally protected right. Finally, we have intimated no view concerning the state trial court’s jurisdiction over respondent’s counterclaim should the North Dakota Supreme Court decide that the trial court does have jurisdiction over petitioner’s claim. Instead, we merely vacate the North Dakota Supreme Court’s judgment and remand the case for further proceedings not inconsistent with this opinion. It is so ordered. Justice Rehnquist, with whom Justice Stevens joins, dissenting. The highest state court in North Dakota has made a decision on the scope of state-court jurisdiction, a decision based on a state statute passed following amendment of the State Constitution. The question is clearly one of state law, immune from our review except in so far as it might be preempted by federal law or in conflict with the United States Constitution. The Court today does not say that Chapter 27-19, as interpreted by the North Dakota Supreme Court, is pre-empted by federal law. Nor does the Court find that statute unconstitutional. Yet the Court vacates the judgment below because Pub. L. 280 neither “authorized” nor “required” any disclaimer of pre-existing state jurisdiction. I do not disagree with the Court’s essay on the purpose and effect of Pub. L. 280. But I fail to see its relevance to the state-law issues decided by the court below. Accordingly, I would affirm the judgment of the North Dakota court 160 OCTOBER TERM, 1983 Rehnquist, J., dissenting 467 U. S. because the only federal question actually before us—the constitutionality of North Dakota’s refusal to exercise jurisdiction over a lawsuit brought by an Indian tribe—is insubstantial. In Part II-A of its opinion, the Court argues that statecourt jurisdiction over this case would have been proper, as a matter of both federal and North Dakota law, prior to the passage of Pub. L. 280 and that nothing in Pub. L. 280 should have changed that situation. In Part II-B, the Court parlays the eclipse of this “residual jurisdiction” into a reason for concluding that the North Dakota Supreme Court may have misunderstood Pub. L. 280 when it interpreted Chapter 27-19. The linchpin of the entire argument is the 1957 case of Vermillion n. Spotted Elk, 85 N. W. 2d 432, in which the North Dakota court took an expansive view of the scope of state-court jurisdiction over suits by and against Indians in Indian country. The Court today correctly states that the jurisdiction claimed in Vermillion—over all civil actions arising in Indian country, except those involving interests in Indian lands—would embrace this case. Ante, at 147. But the argument for residual jurisdiction which the Court constructs around Vermillion is wholly untenable for the simple reason that the expansive jurisdiction of Vermillion was discredited, two years after it was claimed, by our decision in Williams v. Lee, 358 U. S. 217 (1959). Both the specific holding and the broad dictum of Vermillion were pre-empted by Williams v. Lee} The North Dakota court exercised jurisdiction in Vermillion over a suit arising out of a car accident on an Indian reservation in which all the parties were reservation Indians. The principles of tribal autonomy recognized in Williams n. Lee clearly pre- 1 In Williams, a non-Indian who operated a store on an Indian reservation in Arizona sued an Indian couple to collect goods sold to them on credit. We held that principles of tribal autonomy precluded the Arizona courts from entertaining the suit in the absence of an affirmative assumption of jurisdiction by the state legislature. 358 U. S., at 222. THREE AFFILIATED TRIBES v. WOLD ENGINEERING 161 138 Rehnquist, J., dissenting elude such an intrusion into strictly tribal affairs without affirmative legislative action pursuant to Pub. L. 280. See Fisher v. District Court, 424 U. S. 382 (1976). And the expansive claim made in Vermillion to jurisdiction over all civil actions arising in Indian country, except those involving interests in Indian lands, cannot be squared with the requirement that such jurisdiction be assumed by legislative action pursuant to Pub. L. 280. In short, at the time Chapter 27-19 was passed, four years after Williams v. Lee, Vermillion was not in any sense good law. The “lawfully assumed jurisdiction,” ante, at 150, which the Court thinks must have survived both Pub. L. 280 and Chapter 27-19, was in fact unlawfully assumed and therefore invalid. The fact that Chapter 27-19 appears to expand state jurisdiction over Indian country rather than to contract it must be understood, not in light of Vermillion, but in light of the intervening, superseding decision of this Court in Williams v. Lee. The North Dakota Legislature was effectively starting from “square one” in asserting jurisdiction over civil actions in Indian country when it passed Chapter 27-19. Thus, since the assumption of jurisdiction in Chapter 27-19 was predicated on tribal consent, which has not been forthcoming, the North Dakota Supreme Court could naturally and properly conclude that there was no statecourt jurisdiction in this case.2 The Court glosses over this obvious difficulty in its argument by simply recasting Vermillion to fit its needs. “To be sure the full breadth of state-court jurisdiction recognized in Vermillion cannot be squared with principles of tribal autonomy; to the extent that Vermillion permitted North Dakota state courts to exercise jurisdiction over claims by non-Indians against Indians or 2 In 'Washington v. Yakima Indian Nation, 439 U. S. 463, 495 (1979), we held that “any option State can condition the assumption of full jurisdiction on the consent of an affected tribe” even though not required to do so by Pub. L. 280. 162 OCTOBER TERM, 1983 Rehnquist, J., dissenting 467 U. S. over claims between Indians, it intruded impermissibly on tribal self-governance. . . . This Court, however, repeatedly has approved the exercise of jurisdiction by state courts over claims by Indians against non-Indians, even when those claims arose in Indian country.” Ante, at 148. In accordance with its view of what the North Dakota courts could have done compatibly with federal law, the Court proceeds to treat Vermillion as if it had in fact only claimed jurisdiction over suits by Indians against non-Indians. Thus, the Court says that nothing in Pub. L. 280 “required North Dakota to disclaim the basic jurisdiction recognized in Vermillion or authorized it to do so,” ante, at 150, and that “no federal law or policy required the North Dakota courts to forgo the jurisdiction recognized in Vermillion in this case,” ante, at 151. The Court even refers to the jurisdiction of Vermillion as “otherwise lawfully assumed jurisdiction.” Ante, at 150. I must confess to being nonplussed by the Court’s treatment of Vermillion. It seems strange, indeed, to suppose that Vermillion is in some sense good law—when neither its holding nor its reasoning is acceptable under federal law— merely because the opinion would be acceptable if it had been written altogether differently and reached an opposite result. The fact remains that it was not written differently and did not reach the opposite result. The North Dakota court improperly tried to assert jurisdiction over all civil actions arising in Indian country, except those involving interests in Indian lands. That attempt having failed, there is no indication that North Dakota would have accepted the one-way jurisdiction sought by petitioner in this case, whereby Indians can sue non-Indians but not vice versa. And the fact that our cases would have permitted the assumption of such jurisdiction is simply beside the point. Nothing in the Enabling Act, the State Constitution, THREE AFFILIATED TRIBES v. WOLD ENGINEERING 163 138 Rehnquist, J., dissenting or Pub. L. 280 compelled North Dakota to grant Indians the right to sue non-Indians in state court in situations where non-Indians could not sue Indians. And it is sheer speculation to suppose that the State would have done so.3 Without Vermillion the Court’s argument in Part II-B simply crumbles. For without some sort of plausible “residual jurisdiction” that would cover this case, Pub. L. 280 constitutes an affirmative bar to the assumption of jurisdiction by the North Dakota court. Any jurisdiction over Indian country assumed by an option State following passage of Pub. L. 280 must be assumed in accordance with the requirements of Pub. L. 280. It must be assumed, that is, by affirmative legislative action; state courts are powerless to act 3 The North Dakota court’s subsequent treatment of Vermillion provides a strong indication that the court would never, as a matter of state law, have recognized the one-sided jurisdiction sought by petitioner and permitted by federal law. As noted, the jurisdiction claimed in Vermillion under state law was invalid under Williams v. Lee as pre-empted by federal law. That same jurisdiction was also disclaimed as a matter of state law by the passage of Chapter 27-19. See 321 N. W. 2d 510, 511 (N. D. 1982). Chapter 27-19 provides that “jurisdiction of the state of North Dakota shall be extended over all civil causes of action which arise on an Indian reservation upon acceptance by Indian citizens in a manner provided by this chapter.” N. D. Cent. Code §27-19-01 (1974). A later provision excepts from this jurisdiction suits involving interests in Indian lands. §27-19-08. Thus, the jurisdiction which North Dakota stands ready to accept under Chapter 27-19 is exactly coterminous with that claimed in Vermillion. If Vermillion had been good law, Chapter 27-19 would have been entirely superfluous. Following the passage of Chapter 27-19, therefore, the North Dakota court could reasonably conclude that the legislature had disclaimed (i. e., renounced any claim to) the jurisdiction wrongfully usurped in Vermillion except on consent of the affected tribes. And the fact that the court concluded that all the jurisdiction of Vermillion had been disclaimed indicates that, as a matter of state law, the court views the jurisdiction of Vermillion as an all-or-nothing, reciprocal proposition. Again, it is irrelevant that our cases would have permitted the State to assert one-sided, residual jurisdiction. The State was not obliged to accept the invitation. 164 OCTOBER TERM, 1983 Rehnquist, J., dissenting 467 U. S. on their own initiative. As we stated in Kennerly v. District Court of Montana, 400 U. S. 423, 427 (1971): “[T]he requirement of affirmative legislative action [was not] an idle choice of words; the legislative history of the 1953 statute shows that the requirement was intended to assure that state jurisdiction would not be extended until the jurisdictions to be responsible for the portion of Indian country concerned manifested by political action their willingness and ability to discharge their new responsibilities.” North Dakota took affirmative legislative action in passing Chapter 27-19, but conditioned its assumption of jurisdiction on tribal consent. Since that consent has not been forthcoming, North Dakota has not assumed any additional jurisdiction over Indian country under Pub. L. 280. See Washington v. Yakima Indian Nation, 439 U. S. 463, 499 (1979). North Dakota courts therefore have no authority to unilaterally augment their jurisdiction by entertaining suits either by or against Indians in actions arising on Indian lands. Fisher v. District Court, 424 U. S., at 388-389; Kennerly, supra, at 427.4 Unless, therefore, such jurisdiction was “assumed prior to and apart from Pub. L. 280,” ante, at 151, an assumption I find untenable for the reasons given, Pub. L. 280 precludes the exercise of jurisdiction in this case.5 4 For this reason, the Court’s reliance on Nelson v. Dubois, 232 N. W. 2d 54 (N. D. 1975), and Schantz v. White Lightning, 231 N. W. 2d 812 (N. D. 1975), see ante, at 155-156, and n. 14, for the proposition that the North Dakota Supreme Court may have misread federal law is misplaced. In so far as North Dakota has not already assumed lawful jurisdiction over suits arising in Indian country, either prior to Pub. L. 280 or pursuant to the terms of that statute, federal law does act “as an affirmative bar to the exercise of jurisdiction here,” ante, at 155. 5 Obviously, if Pub. L. 280 would preclude a judicial assumption of jurisdiction in this case, then the North Dakota Supreme Court properly disposed of petitioner’s equal protection argument with a simple citation to Washington v. Yakima Indian Nation, 439 U. S., at 500-501, in which we rejected a similar challenge to a Washington statute which conditioned THREE AFFILIATED TRIBES v. WOLD ENGINEERING 165 138 Rehnquist, J., dissenting I might finally add that even if one did posit a truncated Vermillion as somehow providing the residual jurisdiction necessary to the Court’s argument until eclipsed by the North Dakota Legislature, there is still no indication and the Court offers no good reason to believe that the North Dakota Supreme Court interpreted Chapter 27-19 under any misapprehensions about Pub. L. 280. The North Dakota court in fact shows a perfectly clear appreciation of both the purpose and effect of Pub. L. 280. “The purpose of Public Law 280 was to facilitate the transfer of jurisdictional responsibility to the states. Washington v. Confederated Bands and Tribes, 439 U. S. 463, 505 (1979). It permitted states to amend their constitutions or existing statutes to remove any legal impediments to the assumption of civil and criminal jurisdiction, and thereby to unilaterally assume jurisdiction over criminal and civil matters within the exterior boundaries of Indian reservations within the states taking such action.” 321 N. W. 2d 510, 511 (1982). This statement of the law is unexceptionable. Indeed, the Court’s own statement of the purpose and effect of Pub. L. 280, see ante, at 150, reads like a paraphrase of the above passage. The North Dakota court never even remotely implies that Pub. L. 280 “required” the State to eliminate any preexisting, lawfully assumed jurisdiction. The focus is rather on the passage of Chapter 27-19 by the state legislature. See n. 3, supra. And as to whether the court may have mistakenly thought that Pub. L. 280 “authorized” such a disclaimer of jurisdiction by the State, I cannot see how that question is relevant at all. Either a disclaimer of pre-existing jurisdiction was forbidden by federal law or it was not. If not, and state jurisdiction over Indian lands in some subject-matter areas on Indian consent. It would also follow that the lower court’s handling of the equal protection claim does not, as the Court would have it, ante, at 154, reflect any misunderstanding of federal law. 166 OCTOBER TERM, 1983 Rehnquist, J., dissenting 467 U. S. the majority does not imply that it was, then there is no additional requirement that it be affirmatively sanctioned. A State is not obliged to play “Mother, may I” with the Federal Government before retroceding jurisdiction that, under our cases, could have been retained. In my view, therefore, the only federal question presented in this case is whether North Dakota’s failure to permit Indians to sue non-Indians in circumstances under which nonIndians could not sue Indians violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. After our decision in Washington n. Yakima Indian Nation, supra, that question is not a substantial one. See n. 5, supra. Access to the North Dakota courts is within the power of petitioner. The Tribe need merely consent to the full civil jurisdiction which North Dakota, pursuant to Pub. L. 280, stands ready to offer them. Petitioner wants to enjoy the full benefits of the state courts as plaintiff without ever running the risk of appearing as defendant. The Equal Protection Clause mandates no such result. I respectfully dissent. UNITED STATES v. LORENZETTI 167 Syllabus UNITED STATES v. LORENZETTI CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 83-838. Argued April 23, 1984—Decided May 29, 1984 Respondent, a Federal Government employee injured in an automobile accident in Pennsylvania while on official business, received payment from the Government under the Federal Employees’ Compensation Act (FECA) for his medical expenses and lost wages. Under FECA, the Government is not liable for losses such as pain and suffering. Respondent subsequently instituted a tort action in a Pennsylvania state court against the driver of the other automobile. Such an action is generally limited under the Pennsylvania No-fault Motor Vehicle Insurance Act to recovery for noneconomic losses like pain and suffering. After respondent eventually settled the case for a sum that represented compensation for noneconomic losses alone, the United States sought to be reimbursed for its FECA payments out of the settlement, asserting that it was entitled to reimbursement pursuant to the provision of FECA (5 U. S. C. § 8132) prescribing that whenever a federal employee suffers injury or death compensable under FECA “under circumstances creating a legal liability in a person other than the United States to pay damages,” and the employee or his beneficiaries receive “money or other property in satisfaction of that liability as the result of suit or settlement,” they “shall refund to the United States the amount of compensation paid by the United States.” Respondent declined to pay over the requested sum and commenced an action in Federal District Court, seeking a declaratory judgment that the Government’s right of reimbursement under § 8132 was confined to recovery out of damages awards or settlements for economic losses of the sort covered by FECA, and that an award or settlement confined to noneconomic losses like pain and suffering was immune from recovery under § 8132. The District Court granted summary judgment to the United States, but the Court of Appeals reversed. Held: Section 8132 entitles the United States to be reimbursed for FECA compensation out of any damages award or settlement made in satisfaction of third-party liability for personal injury or death, regardless of whether the award or settlement is for losses other than medical expenses and lost wages. On its face, the statute does not confine the United States to the rights of a subrogee with respect to the specific classes of expenses paid by it to injured employees under FECA; instead, it expressly creates a general right of reimbursement that obtains 168 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. without regard to whether the employee’s third-party recovery includes losses that are excluded from FECA coverage. This reading of § 8132 is reinforced by the parallel terms of § 8131, which governs the right of the United States itself to prosecute an employee’s third-party action. And nothing in FECA’s legislative history establishes that § 8132 means something less than what it says. While no-fault automobile insurance statutes were not in existence when FECA was enacted in 1916, the possibility that third-party recoveries might encompass compensation for pain and suffering was well known, and Congress has not subsequently acted to restrict the types of third-party recoveries from which the United States may obtain reimbursement. Nor is there any inconsistency between the interpretation of § 8132 adopted here and the underlying purposes of the provision. Pp. 173-179. 710 F. 2d 982, reversed. Blackmun, J., delivered the opinion for a unanimous Court. Carolyn F. Corwin argued the cause for the United States. With her on the briefs were Solicitor General Lee, Acting Assistant Attorney General Willard, Deputy Solicitor General Geller, William Kanter, and Freddi Lipstein. Charles Sovel argued the cause and filed a brief for respondent. Justice Blackmun delivered the opinion of the Court. The Federal Employees’ Compensation Act (FECA), 5 U. S. C. §8101 et seq., provides a comprehensive system of compensation for federal employees who sustain work-related injuries. As part of that system, an employee who receives FECA payments is required to reimburse the United States for those payments, to a specified extent, when he obtains a damages award or settlement from a third party who is liable to the employee for his injuries. § 8132. The question presented by this case is whether the United States may recover FECA payments for medical expenses and lost wages from an employee whose third-party tort recovery compensates him solely for noneconomic losses like pain and suffering. UNITED STATES v. LORENZETTI 169 167 Opinion of the Court I The facts are clear. Respondent Paul B. Lorenzetti is a special agent for the Federal Bureau of Investigation. On November 21, 1977, he was injured in an automobile accident in Philadelphia while on official business. Federal employees who are injured while engaged in the performance of their official duties are entitled under FECA to compensation for medical expenses, lost wages, and vocational rehabilitation. See §§ 8102-8107. Respondent’s injuries were not serious enough to require vocational rehabilitation, but he eventually received, from the Federal Employees’ Compensation Fund, the sum of $1,970.81 for his medical expenses and lost wages. See § 8147. Because the United States’ liability for work-related injuries under FECA is exclusive, see § 8116(c), respondent cannot recover from the United States for losses such as pain and suffering that are not compensated under FECA. Respondent subsequently instituted a tort action in a Pennsylvania state court against the driver of the other automobile. Respondent’s action was subject to the terms of the Pennsylvania No-fault Motor Vehicle Insurance Act (Nofault Act), Pa. Stat. Ann., Tit. 40, § 1009.101 et seq. (Purdon Supp. 1984-1985), which substantially alters conventional tort liability for automobile accidents. Under the No-fault Act, an accident victim must look to his own insurance carrier to cover basic economic losses, including an unlimited amount of medical expenses and up to $15,000 in lost wages. §§ 1009.104, 1009.106, 1009.202. The victim may maintain a tort action against the driver of the other automobile, but his recovery is generally limited to noneconomic losses like pain and suffering; he may recover damages for economic losses only to the extent that they are not otherwise compensated because they exceed statutory limits (such as the $15,000 lost-wage ceiling) under the No-fault Act. §§ 1009.301(a)(4) and (a)(5). In this case, respondent’s medical expenses and 170 OCTOBER TERM, 1983 467 U. S. Opinion of the Court lost wages had been compensated fully by the Federal Government under FECA. As a result, the driver of the other vehicle moved to exclude evidence of medical expenses and lost wages from the trial. The trial court did not rule formally on that motion but indicated its agreement that respondent was confined to recovering damages for noneconomic losses. Respondent eventually settled the case for $8,500, a figure that represented compensation for noneconomic losses alone. The United States thereafter sought to be reimbursed for its FECA payments out of respondent’s tort settlement.1 FECA contains several provisions designed to shift the compensation burden from the United States to any third party who is independently liable for the employee’s injuries. Under §8131, if an accident for which the United States is liable under FECA also creates a legal liability in a person other than the United States to pay damages, the Secretary of Labor may require the employee either to prosecute an action in his own name against the third party or to assign to the United States his right of action to enforce the liability. When an employee maintains an action in his own name, the United States is entitled to be reimbursed for its FECA payments in accordance with §8132. This statute in relevant part reads: “If an injury or death for which compensation is payable under [FECA] is caused under circumstances creating a legal liability in a person other than the United States to pay damages, and a beneficiary entitled to compensation from the United States for that injury or death receives money or other property in satisfaction of that liability as the result of suit or settlement by him or in his behalf, the beneficiary, after deducting therefrom the costs of 1 After deducting the Government’s share of a reasonable attorney’s fee, see 5 U. S. C. § 8132, the United States arrived at a reimbursement figure of $1,620.24. This roughly represents one-fifth of the sum received by respondent in the settlement of his third-party action. UNITED STATES v. LORENZETTI 171 167 Opinion of the Court suit and a reasonable attorney’s fee, shall refund to the United States the amount of compensation paid by the United States and credit any surplus on future payments of compensation payable to him for the same injury.”2 The United States asserted that it was entitled to reimbursement for its FECA payments in this case pursuant to § 8132. Respondent declined to pay over the requested sum and, instead, commenced a declaratory judgment action in the United States District Court for the Eastern District of Pennsylvania. He sought a declaration that the United States’ right of reimbursement under § 8132 was confined to recovery out of damages awards or settlements for economic losses of the sort covered by FECA, and that an award or settlement confined to noneconomic losses like pain and suffering was immune from recovery under § 8132. In opposition, the United States took the position that § 8132 created a general right of reimbursement not conditioned on the nature of the loss for which an employee received payment in his tort action. The District Court granted summary judgment to the United States. 550 F. Supp. 997 (1982). The District Court relied principally on Ostrowski n. United States Dept, of Labor, Office of Workers Compensation Programs, 653 F. 2d 229 (CA6 1981), aff’g Ostrowski v. Roman Catholic Archdiocese of Detroit, 479 F. Supp. 200 (ED Mich. 1979), in which the Court of Appeals for the Sixth Circuit had been presented with the identical question by virtue of a similar Mich 2 Section 8132 further provides that no person shall make distribution to an employee pursuant to a damages judgment or settlement without first satisfying the United States’ reimbursement interest. The federal right of reimbursement under § 8132 is subject to one significant limitation: regardless of the extent of his FECA receipts, an employee is entitled to retain one-fifth of the net amount of the recovery after the expenses of the suit have been deducted. The same protection is available under § 8131(c) when the Secretary of Labor prosecutes an assigned right of action on behalf of the United States. 172 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. igan no-fault statute and had resolved the issue in favor of the Government. Like the courts in Ostrowski, the District Court here looked to the language of §8132 itself. It observed: “‘There is no language in Section 8132 delineating two classes of damages—one of which gives rise to a duty to reimburse and one of which does not.’” 550 F. Supp., at 999, quoting Ostrowski, 479 F. Supp., at 203. Instead, the duty to reimburse encompassed all damages recovered from third parties. The District Court found further support for its reading of § 8132 both in the regulations promulgated by the Secretary of Labor under § 8132 and in the legislative history, which indicated that Congress had been aware of the possibility of third-party tort recoveries for noneconomic harms yet had taken no action to confine the scope of the statute. 550 F. Supp., at 1000. On appeal, the United States Court of Appeals for the Third Circuit reversed. 710 F. 2d 982 (1983). Unlike the District Court, the Court of Appeals made only passing references to the language of §8132. It reasoned that, because §8132 was enacted prior to the advent of no-fault statutes, “Congress could not have anticipated this scenario” and the statute “does not speak to this situation.” Id., at 985. The Court of Appeals addressed itself instead to what it deemed to be the underlying purposes of § 8132 and FECA. In the Court of Appeals’ view, the purpose of § 8132 was twofold: to prevent federal employees from obtaining double recoveries and to minimize the cost of FECA to the Federal Government. Id., at 984. These goals, in turn, were subject to FECA’s overarching aim of treating federal employees “‘in a fair and equitable manner.’” Id., at 985, quoting S. Rep. No. 93-1081, p. 2 (1974). The Court of Appeals rejected the District Court’s reading of § 8132 on the ground that it would not serve the purposes of the statute and would be “manifestly unfair” to federal employees subject to no-fault statutes. 710 F. 2d, at 985. The goal of preventing double recovery does not require that the UNITED STATES v. LORENZETTI 173 167 Opinion of the Court United States be reimbursed when an employee’s tort recovery under a no-fault statute is limited to noneconomic damages, since the Commonwealth’s statutory scheme guarantees that the employee’s recovery does not include payment for elements of loss covered by FECA. At the same time, allowing the United States to obtain reimbursement out of a tort recovery for noneconomic loss would frustrate the congressional goal of treating federal employees fairly and equitably, for the Pennsylvania workmen’s compensation statute does not impose a parallel obligation on private employees to make reimbursements in the same circumstances. Id., at 985-986. The Court of Appeals found nothing in the legislative history of FECA or the regulations promulgated by the Secretary of Labor under § 8132 that made it improper to read § 8132 analogously to the Commonwealth’s workmen’s compensation statute. Ibid. The Court of Appeals recognized, however, that its interpretation of §8132 was squarely inconsistent with that of the Court of Appeals for the Sixth Circuit in Ostrowski. 710 F. 2d, at 984. We granted certiorari to resolve the conflict over the scope of the United States’ right of reimbursement under §8132. 464 U. S. 1068 (1984). We now reverse. II The answer to the question presented here is evident on the face of the statute, it seems to us, for § 8132 by its own terms requires respondent to reimburse the United States for the disputed sum. Section 8132 provides that whenever a federal employee suffers injury or death compensable under FECA “under circumstances creating a legal liability in a person other than the United States to pay damages,” and the employee or his beneficiaries receive “money or other property in satisfaction of that liability,” they “shall refund to the United States the amount of compensation paid by the United States.” We find little room for confusion about the meaning of this language. Section 8132 imposes only two 174 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. conditions precedent to an employee’s obligation to “refund . . . the amount of compensation paid by the United States.” The first is that the employee must have suffered an injury or death under circumstances creating a legal liability in a third party to pay damages. The second is that the employee or his beneficiaries must have received money or other property in satisfaction of that liability. Here, both conditions have been met: respondent was injured in an automobile accident that gave rise to third-party liability, and he received $8,500 in satisfaction of his claim for damages. As a result, the United States is entitled to reimbursement for amounts paid to respondent for medical expenses and lost wages. Contrary to respondent’s argument, § 8132 does not confine the United States to the rights of a subrogee with respect to the specific classes of expenses paid by it to injured employees under FECA; instead, it expressly creates a general right of reimbursement that obtains without regard to whether the employee’s third-party recovery includes losses that are excluded from FECA coverage.3 Respondent argues that §8132 is inherently ambiguous because the term “damages” bears several readings. In particular, respondent suggests that “damages” could be read literally to encompass not only liability for death or personal injury but liability for property damages as well. Respondent argues that the provision cannot have been meant to create a right of reimbursement out of an employee’s recovery for property damages, and hence that the literal language of §8132 leads to unintended results unless it is informed with the congressional policies on which the Court of Appeals relied. We agree that § 8132 does not include a right of reimbursement out of third-party compensation for property damages, but we disagree that the statutory reference to “damages” contains any ambiguity that must be dispelled to reach that conclusion. The term “damages” clearly refers back to the “injury or death” that gives rise to the third party’s legal liability, thereby excluding reimbursement out of any property-damages recovery. Section 8132’s predecessor provision was even clearer in this regard, for it stated that the United States’ right of reimbursement arose “if an injury or death for which compensation is payable ... is caused under circumstances UNITED STATES v. LORENZETTI 175 167 Opinion of the Court This reading of §8132 is reinforced by the parallel terms of §8131, which governs the right of the United States itself to prosecute an employee’s third-party action. Section 8131(a)(1) requires an employee, at the discretion of the Secretary of Labor, to “assign to the United States any right of action he may have to enforce [a third-party] liability” arising from the employee’s accident (emphasis added). This obligation to assign causes of action arising from accidents covered by FECA is an unqualified one; the statute does not excuse an employee whose only cause of action is for elements of loss that are not compensable under FECA. See H. R. Rep. No. 678, 64th Cong., 1st Sess., 11 (1916) (an injured employee or his beneficiary may be required to assign “any right of action” against a third party whose tortious conduct caused the injury (emphasis added)). In turn, the Secretary of Labor is authorized to prosecute or compromise any cause of action so assigned and to “deduct [from any recovery] and place to the credit of the Employees’ Compensation Fund the amount of compensation already paid to the beneficiary,” reserving for the employee or his beneficiaries not less than one-fifth of the award or settlement. § 8131(c). There is no question but that the Secretary of Labor could have required respondent to assign his cause of action against the other driver to the United States, on pain of forfeiting his FECA compensation if he refused to do so, § 8131(b), and could have maintained the action directly for the benefit of the United States. Respondent has not explained why this result is unwarranted under § 8131 or why creating a legal liability in some person other than the United States to pay damages therefor. ...” Act of Sept. 7, 1916, ch. 458, §27, 39 Stat. 747-748 (emphasis added), repealed by Pub. L. 89-554, § 8(a), 80 Stat. 632, 643. The use of the term “therefor” demonstrates Congress’ intent that “damages” refer back to the phrase “injury or death.” “Therefor” was omitted when the original provision was replaced by § 8132 in 1966, but the omission was not meant to be a substantive change. See Pub. L. 89-554, § 7(a), 80 Stat. 631. 176 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. §8132 should be construed to diminish the scope of the United States’ reimbursable interest when a third-party action is maintained by the employee himself.4 Nothing in FECA’s legislative history persuades us that § 8132 means something less than what it says. FECA was enacted in 1916 as the first comprehensive injurycompensation statute for federal employees. Act of Sept. 7, 1916, ch. 458, 39 Stat. 742, repealed by Pub. L. 89-554, §8(a), 80 Stat. 632, 643. Section 27 of the original statute vested the United States with a right of reimbursement in terms that do not differ materially from the relevant portions of § 8132 today.5 The section was adopted “not for the purpose of increasing [FECA] compensation, but for the purpose of reimbursing the Government for payments made and indemnifying it against other amounts payable in the future.” Dahn v. Davis, 258 U. S. 421, 430 (1922). At no point did Congress suggest in its deliberations that the federal right of reimbursement was to be limited to particular categories of third-party recoveries for injury or death. While no-fault automobile insurance statutes were not in existence in 1916, the possibility that third-party recoveries might encompass 4 Respondent does argue that § 8131 provides nothing more than an alternative means for the United States to enforce an interest in an employee’s claim for medical expenses and lost wages. The language of § 8131, however, is no more subject to this strained interpretation than is the language of § 8132. 5 Section 27 provided: “[I]f an injury or death for which compensation is payable under this Act is caused under circumstances creating a legal liability in some person other than the United States to pay damages therefor, and a beneficiary entitled to compensation from the United States for such injury or death receives, as a result of a suit brought by him or on his behalf, or as a result of a settlement made by him or on his behalf, any money or other property in satisfaction of the liability of such other person, such beneficiary shall, after deducting the costs of suit and a reasonable attorney’s fee, apply the money or other property so received [as a refund to the United States for FECA payments already made and as a credit for unmatured FECA obligations arising from the same injury].” UNITED STATES v. LORENZETTI 177 167 Opinion of the Court compensation for pain and suffering was well known, see, e. g., 53 Cong. Rec. 10909-10910 (1916) (remarks of Rep. Barkley); yet no effort was made to reduce the breadth of the statutory language to insulate such compensation from recovery by the United States. Congress subsequently provided added protection for employees under §8132, most notably by reserving one-fifth of the net third-party recovery for the employee, see Pub. L. 89-488, § 10, 80 Stat. 255, but at no point has it acted to restrict the types of third-party recoveries from which the United States may obtain reimbursement. Neither do we find any inconsistency between the interpretation of § 8132 rejected by the Court of Appeals and the underlying purposes of the provision. Admittedly, the goal of preventing double recoveries by injured employees does not demand that an employee in respondent’s position turn over a third-party payment confined to compensation for pain and suffering. As the Court of Appeals itself recognized, however, the purpose of § 8132 is not simply to prevent double recoveries but to minimize the cost of the FECA program to the Federal Government. See Dahn v. Davis, 258 U. S., at 430; cf. H. R. Rep. No. 678, supra, at 13-14. It is self-evident that the latter goal is directly advanced by allowing the United States to obtain reimbursement out of any third-party recovery, regardless of whether the third-party recovery includes compensation for losses other than medical expenses and lost wages. When Congress has chosen to subordinate the goal of minimizing FECA expenditures to other concerns, as it did when it amended § 8132 to reserve one-fifth of the net third-party recovery for the employee, it has done so explicitly. We are not at liberty to fashion an additional limitation on that goal without express authorization from Congress. The Court of Appeals believed that allowing the United States to recover in this case would be inconsistent with Congress’ declared intent that federal employees “be treated in a fair and equitable manner” under FECA and that the United 178 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. States “strive to attain the position of being a model employer.” S. Rep. No. 93-1081, p. 2 (1974). However useful these general statements of congressional intent may be in resolving ambiguities in the statutory scheme, they are not a license to ignore the plain meaning of a specific statutory provision. The language relied on by the Court of Appeals concerned a wide variety of amendments to FECA enacted in 1974, none of which materially altered the balance struck in § 8132 between the interests of employees and the interests of the Federal Government. In addition, as this case amply demonstrates, any unfairness or inequity arises not from the operation of § 8132 alone but from the provision’s interaction with distinct state statutory schemes. Even if Congress’ desire that the United States be “a model employer” were a sufficient basis for interpreting §8132 to avoid intrinsic inequities, it hardly would be a sufficient basis for inferring that Congress meant to sacrifice the substantial federal interest in reimbursement in order to avoid extrinsic complications introduced by independent state legislative actions. Nor is it true, as the Court of Appeals seemed to believe, that interpreting §8132 to require reimbursement here will leave federal employees systematically worse off than their counterparts in the private sector; the prevailing rule under state workmen’s compensation statutes is that an employer is fully entitled to be reimbursed from third-party recoveries for pain and suffering, even when the portion of an award attributable to pain and suffering is clearly separable from the portion attributable to economic losses. See 2A A. Larson, The Law of Workmen’s Compensation § 74.35, pp. 14-476 to 14-478 (1982). The Court of Appeals also sought to justify its conclusion on the ground that Congress could not have anticipated the adoption of no-fault automobile insurance statutes and the attendant restriction on third-party tort liability for economic losses. As pointed out above, the fact that Congress could not foresee no-fault statutes does not mean that Congress did UNITED STATES v. LORENZETTI 179 167 Opinion of the Court not foresee the risk that federal reimbursement rights would trench on third-party recoveries for noneconomic losses. More important, the fact that changing state tort laws may have led to unforeseen consequences does not mean that the federal statutory scheme may be judicially expanded to take those changes into account. See Morrison-Knudsen Construction Co. v. Director, Office of Workers’ Compensation Programs, 461U. S. 624, 635-636 (1983). It is for Congress, not the courts, to revise longstanding legislation in order to accommodate the effects of changing social conditions. Congress simply has not done so here. Ill For these reasons, we hold that § 8132 entitles the United States to be reimbursed for FECA compensation out of any damages award or settlement made in satisfaction of third-party liability for personal injury or death, regardless of whether the award or settlement is for losses other than medical expenses and lost wages. The judgment of the Court of Appeals, accordingly, is reversed. It is so ordered. 180 OCTOBER TERM, 1983 Syllabus 467 U. S. UNITED STATES v. GOUVEIA et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 83-128. Argued March 20, 1984—Decided May 29, 1984 Four of the respondents, who were all inmates in a federal prison, were placed in administrative detention in individual cells during the investigation of the 1978 murder of a fellow inmate. They remained in administrative detention without appointed counsel for approximately 19 . months before their indictment on federal criminal charges and their arraignment in Federal District Court, when counsel was appointed for them. The District Court denied their motion to dismiss the indictment on the asserted ground that their administrative confinement without appointed counsel violated their Sixth Amendment right to counsel, and they were ultimately convicted of murder. The other two respondents were placed in administrative detention without appointed counsel for approximately eight months during the investigation of a 1979 murder of another inmate. Counsel was appointed for them and they were released from administrative detention when they were arraigned on a federal indictment. They were also ultimately convicted of murder over their contention that the preindictment administrative confinement violated their Sixth Amendment right to counsel. On consolidated appeals, the Court of Appeals reversed. Although recognizing that a plurality of this Court had concluded in Kirby v. Illinois, 406 U. S. 682, that the Sixth Amendment right to counsel attaches only when formal judicial proceedings are initiated against an individual by way of indictment, information, arraignment, or preliminary hearing, the Court of Appeals noted that Kirby was not a prison case, and concluded that an indigent inmate who is the subject of a felony investigation and who is isolated in administrative detention for more than 90 days, must be afforded counsel after 90 days or else be released back into the prison population. Held: Respondents were not constitutionally entitled to the appointment of counsel while they were in administrative segregation and before any adversary judicial proceedings had been initiated against them. Pp. 187-192. (a) The right to counsel attaches only at or after the initiation of adversary judicial proceedings against the defendant. Cf. Kirby v. Illinois, supra, at 688-689. This interpretation of the Sixth Amendment right to counsel is consistent not only with the literal language of the UNITED STATES v. GOUVEIA 181 180 Syllabus Amendment, which requires the existence of both a “criminal prosecu-tio[n]” and an “accused,” but also with the purposes that the right to counsel serves, including assuring aid at trial and at “critical” pretrial proceedings when the accused is confronted with the intricacies of criminal law or with the expert advocacy of the public prosecutor, or both. Pp. 187-189. (b) The Court of Appeals’ analogy to Sixth Amendment speedy trial cases—which hold that that Sixth Amendment right may attach as early as the time of arrest—is inapt. The speedy trial right and the right to counsel protect different interests, and any analogy between an arrest and an inmate’s administrative detention pending investigation is not relevant to a proper determination of when the right to counsel attaches. Pp. 189-190. (c) The Court of Appeals’ holding also confuses the purpose of the right to counsel with purposes that are served by the Fifth Amendment due process guarantee and the statutes of limitations applicable to the particular crime being investigated. The court was concerned with affording protection against the possibility that the Government might delay the initiation of formal charges while it developed its case against the isolated and unaided inmate, during which time physical evidence might deteriorate, witnesses’ memories might dim, and alibi witnesses might be transferred to other facilities. Such concerns, while legitimate ones, do not implicate the right to counsel. Providing a defendant with a preindictment private investigator is not a purpose of the right to counsel. Pp. 191-192. 704 F. 2d 1116, reversed and remanded. Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, Powell, and O’Connor, JJ., joined. Stevens, J., filed an opinion concurring in the judgment, in which Brennan, J., joined, post, p. 193. Marshall, J., filed a dissenting opinion, post, p. 199. Deputy Solicitor General Frey argued the cause for the United States. With him on the briefs were Solicitor General Lee, Assistant Attorney General Trott, Carolyn F. Corwin, and John F. De Pue. Charles P. Diamond, by appointment of the Court, 464 U. S. 1035, argued the cause for respondents Mills et al. With him on the brief were M. Randall Oppenheimer and Edwin S. Saul. Joel Levine, by appointment of the Court, 182 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. 464 U. S. 1035, argued the cause for respondents Gouveia et al. and filed a brief for respondent Segura. Joseph F. Walsh, by appointment of the Court, 464 U. S. 1035, filed a brief for respondent Ramirez. Michael J. Treman, by appointment of the Court, 464 U. S. 1035, filed a brief for respondent Gouveia. Manuel U. A. Araujo filed a brief for respondent Reynoso. * Justice Rehnquist delivered the opinion of the Court. Respondents William Gouveia, Robert Ramirez, Adolpho Reynoso, and Philip Segura were convicted of murdering a fellow inmate at a federal prison in Lompoc, Cal. Respondents Robert Mills and Richard Pierce were convicted of a later murder of another inmate at the same institution. Prison officials placed each respondent in administrative detention shortly after the murders, and they remained there for an extended period of time before they were eventually indicted on criminal charges. On appeal of respondents’ convictions, the en banc Court of Appeals for the Ninth Circuit held by divided vote that they had a Sixth Amendment right to an attorney during the period in which they were held in administrative detention before the return of indictments against them, and that because they had been denied that right, their convictions had to be overturned and their indictments dismissed. 704 F. 2d 1116 (1983). We granted certiorari to review the Court of Appeals’ novel application of our Sixth Amendment precedents, 464 U. S. 913 (1983), and we now reverse. On November 11, 1978, Thomas Trejo, an inmate at the Federal Correctional Institution in Lompoc, Cal., was found dead from 45 stab wounds in the chest. Prison officials and agents from the Federal Bureau of Investigation began inde *Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union Foundation by Richard F. Ziegler and Charles S. Sims; and for the National Legal Aid and Defender Association by Richard J. Wilson. UNITED STATES v. GOUVEIA 183 180 Opinion of the Court pendent investigations of the murder. Prison officials immediately suspected respondents Reynoso and Gouveia and placed them in the Administrative Detention Unit (ADU) at Lompoc. They were released back into the general prison population on November 22, 1978, but after officials obtained further information about the murder, on December 4, 1978, they returned Reynoso and Gouveia to the ADU, and placed respondents Segura and Ramirez in the ADU as well. Later in December, prison officials held disciplinary hearings, determined that all four respondents had participated in the murder of inmate Trejo, and ordered their continued confinement in the ADU. While in the ADU, respondents were separated from the general prison population and confined to individual cells. Although their participation in various prison programs was curtailed, they were still allowed regular visitation rights, exercise periods, access to legal materials, and unmonitored phone calls. 704 F. 2d, at 1118; see generally 28 CFR §§541.19, 541.20(d) (1983). Respondents remained in the ADU without appointed counsel for approximately 19 months. On June 17, 1980, a federal grand jury returned an indictment against respondents on charges of first-degree murder and conspiracy to commit murder in violation of 18 U. S. C. §§ 1111 and 1117 respectively. On July 14, 1980, respondents were arraigned in federal court, at which time a Federal Magistrate appointed counsel for them. Before trial respondents filed a motion to dismiss their indictments, arguing that the delay of approximately 19 months between the commission of the crime and the return of the indictments violated their due process rights under the Fifth Amendment or, alternatively, their Sixth Amendment right to a speedy trial, and that their confinement in the ADU without appointment of counsel during that period violated their Sixth Amendment right to counsel. The District Court for the Central District of California denied their motion, and respondents proceeded to trial. Their first trial, which lasted approximately four weeks, ended in a mistrial. On retrial, respondents were convicted on both counts and 184 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. were sentenced to consecutive life and 99-year terms of imprisonment. The scenario is much the same in the case of Mills and Pierce. Inmate Thomas Hall was stabbed to death at Lompoc on August 22, 1979. Immediately afterwards Mills and Pierce were examined by a prison doctor and questioned by FBI agents regarding the murder. Prison officials suspected them of involvement in the murder and placed them in the ADU pending further investigation. On September 13, 1979, prison officials conducted a disciplinary hearing, concluded that respondents had murdered inmate Hall, and ordered their continued confinement in the ADU where they remained for the next eight months. On March 27, 1980, a federal grand jury returned an indictment against Mills and Pierce on charges of first-degree murder in violation of 18 U. S. C. §1111 and of conveyance of a weapon in prison in violation of 18 U. S. C. § 1792, and against Pierce on a charge of assault in violation of 18 U. S. C. § 113(c). At the time of their arraignment on April 21, 1980, Mills and Pierce were appointed counsel and were released from the ADU. Before trial Mills and Pierce also filed a motion to dismiss their indictments, alleging that the 8-month preindictment delay violated their Fifth Amendment due process rights and their Sixth Amendment speedy trial right, and that their confinement without counsel for that period violated their Sixth Amendment right to counsel. The District Court for the Central District of California granted the motion to dismiss. A panel of the Court of Appeals for the Ninth Circuit reversed and remanded for trial, holding that respondents’ Sixth Amendment rights were not triggered during their administrative segregation because they had not yet been arrested and accused, and that respondents had made an insufficient showing of actual prejudice from the preindictment delay so as to justify dismissal of the indictments on due process grounds. United States v. Mills, 641 F. 2d 785, cert, denied, 454 U. S. 902 (1981). Respondents Mills and UNITED STATES v. GOUVEIA 185 180 Opinion of the Court Pierce were then convicted on all counts and sentenced to life imprisonment. The Court of Appeals, proceeding en banc, consolidated the appeals of all six respondents and addressed only the issue of whether the Sixth Amendment requires the appointment of counsel before indictment for indigent inmates confined in administrative detention while being investigated for criminal activities. 704 F. 2d, at 1119? The Court of Appeals majority recognized that a plurality of this Court had concluded in Kirby v. Illinois, 406 U. S. 682 (1972), that the Sixth Amendment right to counsel attaches only when formal judicial proceedings are initiated against an individual by way of indictment, information, arraignment, or preliminary hearing. The majority recognized that no such proceedings had been initiated against respondents during the period of time for which they asserted a right to appointed counsel in this case. The majority went on to note, however, that Kirby is not a prison case and that the point at which the Sixth Amendment right to counsel is triggered is different in the prosecution of prison crimes. 704 F. 2d, at 1120. In so holding the majority analogized to Sixth Amendment speedy trial cases, where this Court has held that the Sixth Amendment speedy trial right is triggered when an individual is arrested and held to ’The narrow issue before the Court of Appeals and before us today is whether the Sixth Amendment requires the appointment of counsel for indigent inmates in respondents’ situation. Respondents have not contended that they were denied the opportunity to retain their own private counsel while they were in administrative segregation. 704 F. 2d, at 1119. As the Court of Appeals noted, respondents had visitation privileges and the opportunity to make unmonitored phone calls to attorneys while in the ADU. Ibid. See 28 CFR §§541.19(c)(10), 541.20(d) (1983). Respondents also have not asserted a Sixth Amendment ineffective-assistance-of-counsel claim nor have they questioned our holding in Wolff n. McDonnell, 418 U. S. 539, 570 (1974), that inmates have no right to retained or appointed counsel at prison disciplinary proceedings. See Baxter v. Palmigiano, 425 U. S. 308, 315 (1976). 186 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. answer criminal charges. See United States v. Marion, 404 U. S. 307, 320 (1971). The en banc majority reasoned that just as such an arrest constitutes an “accusation” for Sixth Amendment speedy trial purposes, the administrative detention of an inmate for more than 90 days because of a pending felony investigation constitutes an “accusation” for Sixth Amendment right to counsel purposes.2 Thus, according to the Court of Appeals’ holding, an indigent inmate isolated in administrative detention while the subject of a felony investigation must be afforded counsel after 90 days, or else be released back into the prison population, in order to ensure that he or his lawyer will be able to take preindictment investigatory steps to preserve his defense at trial. 704 F. 2d, at 1124. Applying its test to the facts of this case, the Court of Appeals majority held that each respondent had been denied his Sixth Amendment right to counsel. It concluded that the record showed that each respondent had been held in administrative detention longer than 90 days, that each had been held at least in part because of a pending felony investigation,3 and that each had requested and had been denied counsel during his confinement in the ADU. The majority went on to conclude that the appropriate remedy for redressing 2 The majority arrived at the 90-day figure based on its own interpretation of the current federal prison regulations as allowing detention for up to 90 days for disciplinary reasons. See 28 CFR § 541.20(c) (1983). 3 Relying on his interpretation of current prison regulations, the Solicitor General vehemently argues that, whatever additional reasons legitimately may have contributed to the decision to confine respondents in the ADU, the primary reason for their confinement was to ensure the security of the institution. Thus he argues that that security-related detention cannot be equated with an arrest or accusation for Sixth Amendment purposes. Brief for United States 23-27; Tr. of Oral Arg. 9-12. But our holding today makes the reason for the detention irrelevant for purposes of the only issue before us, the point at which the Sixth Amendment right to counsel is triggered. Respondents have not challenged “the legitimacy of administrative detention in general or its appropriateness” in their particular cases. 704 F. 2d, at 1121. UNITED STATES v. GOUVEIA 187 180 Opinion of the Court the Sixth Amendment violations in this case was reversal of respondents’ convictions and dismissal of the indictments against them.4 Five judges dissented from the en banc majority’s Sixth Amendment holding. Relying on Kirby v. Illinois, supra, the dissent concluded that the Sixth Amendment right to counsel is triggered by the initiation of formal criminal proceedings even in the prison context, and that the majority’s conclusion to the contrary shows a misunderstanding of the purpose of the counsel guarantee. 704 F. 2d, at 1127-1129. We agree with the dissenting judges’ application of our precedents to this situation, and, accordingly, we reverse the en banc majority’s holding that respondents had a Sixth Amendment right to the appointment of counsel during their preindictment segregation. The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” As the Court of Appeals majority noted, our cases have long recognized that the right to counsel attaches only at or after the initiation of adversary judicial proceedings against the defendant. In Kirby v. Illinois, supra, a plurality of the Court summarized our prior cases as follows: “In a line of constitutional cases in this Court stemming back to the Court’s landmark opinion in Powell v. Alabama, 287 U. S. 45, it has been firmly established that a person’s Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him. See Powell v. Alabama, supra; Johnson v. Zerbst, 4 The Solicitor General argues here that dismissal of the indictments is an inappropriate remedy absent a showing of actual and specific prejudice to respondents and that they have not made that showing in this case. Brief for United States 44-60. Given our holding on the substantive Sixth Amendment issue, however, we have no occasion to address the remedy question. 188 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. 304 U. S. 458; Hamilton v. Alabama, 368 U. S. 52; Gideon v. Wainwright, 372 U. S. 335; White v. Maryland, 373 U. S. 59; Massiah v. United States, 377 U. S. 201; United States v. Wade, 388 U. S. 218; Gilbert v. California, 388 U. S. 263; Coleman v. Alabama, 399 U. S. 1. “. . . [W]hile members of the Court have differed as to the existence of the right to counsel in the contexts of some of the above cases, all of those cases have involved points of time at or after the initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Id., at 688-689 (emphasis in original). The view that the right to counsel does not attach until the initiation of adversary judicial proceedings has been confirmed by this Court in cases subsequent to Kirby. See Estelle v. Smith, 451 U. S. 454, 469-470 (1981); Moore v. Illinois, 434 U. S. 220, 226-227 (1977); Brewer n. Williams, 430 U. S. 387, 398-399 (1977); United States v. Mandujano, 425 U. S. 564, 581 (1976) (opinion of Burger, C. J.).5 That interpretation of the Sixth Amendment right to counsel is consistent not only with the literal language of the Amendment, which requires the existence of both a “criminal prosecutio[n]” and an “accused,” but also with the purposes which we have recognized that the right to counsel serves. We have recognized that the “core purpose” of the counsel guarantee is to assure aid at trial, “when the accused [is] con 5 The only arguable deviations from that consistent line of cases are Miranda x. Arizona, 384 U. S. 436 (1966), and Escobedo v. Illinois, 378 U. S. 478 (1964). Although there may be some language to the contrary in United States v. Wade, 388 U. S. 218 (1967), we have made clear that we required counsel in Miranda and Escobedo in order to protect the Fifth Amendment privilege against self-incrimination rather than to vindicate the Sixth Amendment right to counsel. See Rhode Island v. Innis, 446 U. S. 291, 300, n. 4 (1980); Kirby v. Illinois, 406 U. S., at 689; Johnson v. New Jersey, 384 U. S. 719, 729-730 (1966). UNITED STATES v. GOUVEIA 189 180 Opinion of the Court fronted with both the intricacies of the law and the advocacy of the public prosecutor.” United States v. Ash, 413 U. S. 300, 309 (1973). Indeed the right to counsel “embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel.” Johnson v. Zerbst, 304 U. S. 458, 462-463 (1938). Although we have extended an accused’s right to counsel to certain “critical” pretrial proceedings, United States v. Wade, 388 U. S. 218 (1967), we have done so recognizing that at those proceedings, “the accused [is] confronted, just as at trial, by the procedural system, or by his expert adversary, or by both,” United States v. Ash, supra, at 310, in a situation where the results of the confrontation “might well settle the accused’s fate and reduce the trial itself to a mere formality.” United States v. Wade, supra, at 224. Thus, given the plain language of the Amendment and its purpose of protecting the unaided layman at critical confrontations with his adversary, our conclusion that the right to counsel attaches at the initiation of adversary judicial criminal proceedings “is far from a mere formalism.” Kirby v. Illinois, 406 U. S., at 689. It is only at that time “that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.” Ibid. The Court of Appeals departed from our consistent interpretation of the Sixth Amendment in these cases, and in so doing, fundamentally misconceived the nature of the right to counsel guarantee. We agree with the dissent that the ma 190 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. jority’s analogy to Sixth Amendment speedy trial cases is inapt. Our speedy trial cases hold that that Sixth Amendment right may attach before an indictment and as early as the time of “arrest and holding to answer a criminal charge,” United States v. MacDonald, 456 U. S. 1, 6-7 (1982); United States v. Lovasco, 431 U. S. 783, 788-789 (1977); Dillingham v. United States, 423 U. S. 64 (1975) (per curiam); United States v. Marion, 404 U. S., at 320, but we have never held that the right to counsel attaches at the time of arrest. This difference is readily explainable, given the fact that the speedy trial right and the right to counsel protect different interests. While the right to counsel exists to protect the accused during trial-type confrontations with the prosecutor, the speedy trial right exists primarily to protect an individual’s liberty interest, “to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges.” United States v. MacDonald, supra, at 8. See Barker v. Wingo, 407 U. S. 514, 532-533 (1972); United States v. Marion, supra, at 320. Thus, the majority’s attempt to draw an analogy between an arrest and an inmate’s administrative detention pending investigation may have some relevance in analyzing when the speedy trial right attaches in this context, but it is not relevant to a proper determination of when the right to counsel attaches.6 6 Of course we express no view as to when the Sixth Amendment speedy trial right attaches in this context because that issue is not before us. The Court of Appeals for the Ninth Circuit, like several other Circuits, see, e. g., United States v. Daniels, 698 F. 2d 221, 223 (CA4 1983); United States v. Blevins, 593 F. 2d 646, 647 (CA5 1979) (per curiam), however, has held that the segregation of an inmate from the general population pending criminal charges does not constitute an “arrest” for purposes of the speedy trial right. United States v. Clardy, 540 F. 2d 439, 441, cert, denied, 429 U. S. 963 (1976). Given its own Clardy holding, the Court of Appeals’ analogy here seems somewhat strained. UNITED STATES v. GOUVEIA 191 180 Opinion of the Court The Court of Appeals’ holding also confuses the purpose of the right to counsel with purposes that are served by the Fifth Amendment due process guarantee and the statutes of limitations applicable to the particular crime being investigated. The majority concludes that the extension of the right to counsel to this prison context is necessary to protect against the possibility that the Government may delay the initiation of formal charges, thus delaying the appointment of counsel, while it develops its case against the isolated and unaided inmate. 704 F. 2d, at 1122. By the time the Government decides to bring charges, the majority felt, witnesses’ memories could have dimmed, alibi witnesses could have been transferred to other facilities, and physical evidence could have deteriorated. Id., at 1126. Those concerns, while certainly legitimate ones, are simply not concerns implicating the right to counsel, and we reaffirm that the mere “possibility of prejudice [to a defendant resulting from the passage of time] ... is not itself sufficient reason to wrench the Sixth Amendment from its proper context.” United States v. Marion, supra, at 321-322. In holding that the appointment of counsel or the release of the inmate from segregation could remedy its concerns, the Court of Appeals must have concluded, quite illogically we believe, that the presence of the inmate in the general prison population or the appointment of a lawyer could somehow prevent the deterioration of physical evidence, or that the inmate or his counsel could begin an effective investigation of the crime within the restricted prison walls before even being able to discover the nature of the Government’s case. Of course, both inside and outside the prison, it may well be true that in some cases preindictment investigation could help a defendant prepare a better defense. But, as we have noted, our cases have never suggested that the purpose of the right to counsel is to provide a defendant with a preindictment private investigator, and we see no reason to adopt that novel interpretation of the right to counsel in this case. 192 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. Thus, at bottom, the majority’s concern is that because an inmate suspected of a crime is already in prison, the prosecution may have little incentive promptly to bring formal charges against him, and that the resulting preindictment delay may be particularly prejudicial to the inmate, given the problems inherent in investigating prison crimes, such as the transient nature of the prison population and the general reluctance of inmates to cooperate. But applicable statutes of limitations protect against the prosecution’s bringing stale criminal charges against any defendant, United States v. Lovasco, supra, at 788-789; United States v. Marion, supra, at 322, and, beyond that protection, the Fifth Amendment requires the dismissal of an indictment, even if it is brought within the statute of limitations, if the defendant can prove that the Government’s delay in bringing the indictment was a deliberate device to gain an advantage over him and that it caused him actual prejudice in presenting his defense. United States v. Lovasco, supra, at 789-790; United States v. Marion, supra, at 324.7 Those protections apply to criminal defendants within and without the prison walls, and we decline to depart from our traditional interpretation of the Sixth Amendment right to counsel in order to provide additional protections for respondents here. We conclude that the Court of Appeals was wrong in holding that respondents were constitutionally entitled to the appointment of counsel while they were in administrative segregation and before any adversary judicial proceedings had been initiated against them. Accordingly, we reverse 7 We have of course rejected the arguments that prosecutors are constitutionally obligated to file charges against a suspect as soon as they have probable cause but before they believe that they can establish guilt beyond a reasonable doubt, United States v. Lovasco, 431 U. S., at 791, and that prosecutors must file charges as soon as they marshal enough evidence to prove guilt beyond a reasonable doubt but before their investigations are complete. Id., at 792-795. UNITED STATES v. GOUVEIA 193 180 Stevens, J., concurring in judgment the judgment of the Court of Appeals and remand for further proceedings consistent with this opinion. It is so ordered. Justice Stevens, with whom Justice Brennan joins, concurring in the judgment. “Whatever else it may mean, the right to counsel granted by the Sixth and Fourteenth Amendments means at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him—‘whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.’” Brewer v. Williams, 430 U. S. 387, 398 (1977) (emphasis supplied) (quoting Kirby v. Illinois, 406 U. S. 682, 689 (1972) (plurality opinion)). That statement, which does not foreclose the possibility that the right to counsel might under some circumstances attach prior to the formal initiation of judicial proceedings, has been the rule this Court has consistently followed. Today the Court seems to adopt a broader rule, stating that “the right to counsel attaches only at or after the initiation of adversary judicial proceedings against the defendant.” Ante, at 187 (emphasis supplied). Because I believe this statement is unjustified by our prior cases and unnecessary to decide this case, I cannot join the opinion of the Court. In Escobedo v. Illinois, 378 U. S. 478 (1964), this Court squarely held that the Sixth Amendment’s right to counsel can attach before formal charges have been filed. Escobedo had been denied access to his lawyer while he was in custody but before any formal charges had been filed. The Court explained: “The interrogation here was conducted before petitioner was formally indicted. But in the context of this case, that fact should make no difference. When petitioner requested, and was denied, an opportunity to consult with his lawyer, the investigation had ceased to be a 194 OCTOBER TERM, 1983 Stevens, J., concurring in judgment 467 U. S. general investigation of ‘an unsolved crime.’ Petitioner had become the accused, and the purpose of the interrogation was to ‘get him’ to confess his guilt despite his constitutional right not to do so.” Id., at 485 (citation omitted) (quoting Spano v. New York, 360 U. S. 315, 327 (1959) (Stewart, J., concurring)). The Court added: “It would exalt form over substance to make the right to counsel, under the circumstances, depend on whether at the time of the interrogation, the authorities had secured a formal indictment. Petitioner had, for all practical purposes, already been charged with murder.” 378 U. S., at 486.1 The Court’s dictum concerning the right to counsel is likewise inconsistent with Miranda v. Arizona, 384 U. S. 436 (1966). There, the Court held that during custodial interrogation the suspect has a right to have counsel present, and that if he cannot afford counsel he is entitled to have counsel appointed to represent him free of charge. See id., at 469-473. The Court recognized that custodial interrogation was the true beginning of adversarial proceedings: “It is at this point that our adversary system of criminal proceedings commences, distinguishing itself at the outset from the inquisitorial system recognized in some countries.” Id., at 477. See also Coleman v. Alabama, 399 U. S. 1, 20 (1970) (Harlan, J., concurring in part and dissenting in part); Dickey v. Florida, 398 U. S. 30, 44 (1970) (Brennan, J., concurring); United States v. Oliver, 505 F. 2d 301, 305, n. 12 (CA7 1974).2 1 See also 378 U. S., at 487, n. 6 (“The English Judges’ Rules also recognize that a functional rather than a formal test must be applied and that, under circumstances such as those here, no special significance should be attached to formal indictment”). Indeed, the rule the majority seems to embrace is similar to the rule advocated in dissent in Escobedo. See id., at 493-494 (Stewart, J., dissenting). 2 To say, as did the Court in Johnson n. New Jersey, 384 U. S. 719 (1966), that the “prime purpose” of Escobedo and Miranda was “to guarantee full effectuation of the privilege against self-incrimination,” 384 U. S., UNITED STATES v. GOUVEIA 195 180 Stevens, J., concurring in judgment United States v. Wade, 388 U. S. 218 (1967), illustrates how Sixth Amendment jurisprudence has turned not on the formal initiation of judicial proceedings but rather on the nature of the confrontation between the authorities and the citizen. The Court began its Sixth Amendment analysis concerning the right to counsel at lineup identifications by noting that “in addition to counsel’s presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s right to a fair trial.” Id., at 226. The Court then reviewed its prior cases and concluded: “[W]e scrutinize any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant’s basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself.” Id., at 227 (emphasis in original). at 729, is merely to state a central rationale for attachment of the right to counsel prior to the formal commencement of the adversary process; it in no way contradicts the proposition that the Sixth Amendment can apply prior to the initiation of judicial proceedings. Escobedo elaborates: “It is argued that if the right to counsel is afforded prior to indictment, the number of confessions obtained by the police will diminish significantly, because most confessions are obtained during the period between arrest and indictment, and ‘any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances.’ This argument, of course, cuts two ways. The fact that many confessions are obtained during this period points up its critical nature as a ‘stage when legal aid and advice’ are surely needed. The right to counsel would indeed be hollow if it began at a period when few confessions were obtained. There is necessarily a direct relationship between the importance of a stage to the police in their quest for a confession and the criticalness of that stage to the accused in his need for legal advice. Our Constitution, unlike some others, strikes the balance in favor the right of the accused to be advised by his lawyer of his privilege against self-incrimination.” 378 U. S., at 488 (footnotes and citations omitted). 196 OCTOBER TERM, 1983 Stevens, J., concurring in judgment 467 U. S. The Court has adhered to this formulation in subsequent cases. See United States v. Henry, 447 U. S. 264, 269 (1980); Gerstein v. Pugh, 420 U. S. 103, 122-123 (1975); Schneckloth v. Bustamante, 412 U. S. 218, 238-240 (1973); Coleman v. Alabama, 399 U. S., at 9 (plurality opinion). Perhaps most telling is United States v. Ash, 413 U. S. 300 (1973), dealing with the right to counsel at a pretrial photographic identification of the accused as the perpetrator by a Government witness. While Justice Stewart argued that “this constitutional ‘right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated,’” id., at 322 (opinion concurring in judgment) (quoting Kirby n. Illinois, 406 U. S., at 688 (plurality opinion)), that was not the path the Court took. It acknowledged that “extension of the right to counsel to events before trial has resulted from changing patterns of criminal procedure and investigation that have tended to generate pretrial events that might appropriately be considered part of the trial itself,” 413 U. S., at 310. It concluded that “the test utilized by the Court has called for examination of the event in order to determine whether the accused required aid in coping with legal problems or assistance in meeting his adversary.” Id., at 313.3 3 Contrary to the majority’s intimations, the cases it cites ante, at 187-188, do not indicate that a majority of the Court has embraced the broad rule suggested by the majority’s dictum. The statement in Kirby v. Illinois, 406 U. S. 682 (1972), that the right to counsel “attaches only at or after the time that adversary judicial proceedings have been initiated,” id., at 688 (plurality opinion), was not joined by a majority. Similarly, The Chief Justice’s opinion in United States v. Mandujano, 425 U. S. 564, 581 (1976) (plurality opinion), was not joined by a majority of the Court. Estelle v. Smith, 451 U. S. 454, 469-470 (1981), and Moore v. Illinois, 434 U. S. 220, 226-227 (1977), merely describe what the Kirby plurality had required for the Sixth Amendment to attach, and held that the plurality’s test was satisfied. In neither case did the Court have occasion to consider whether the right to counsel could ever attach prior to the point identified by the Kirby plurality. As the quotation supra, at 193, demonstrates, Brewer n. Williams, 430 U. S. 387 (1977), left this issue open. UNITED STATES v. GOUVEIA 197 180 Stevens, J., concurring in judgment If the authorities take a person into custody in order to interrogate him or to otherwise facilitate the process of making a case against him, then under the rationale of Escobedo, Miranda, and our other cases, the person is sufficiently “accused” to be entitled to the protections of the Sixth Amendment. In these circumstances, subjecting the uncounseled suspect to questioning or other prosecutorial techniques may present “the high probability of substantial harm identified as controlling in Wade,” Gerstein, 420 U. S., at 123. Thus, when a person is deprived of liberty in order to aid the prosecution in its attempt to convict him, and when the deprivation is likely to have the intended effect, that person is, in my judgment, “an accused.” I join the Court’s judgment because I agree that respondents’ detention in the Administrative Detention Unit (ADU) did not serve an accusatorial function. Under relevant regulations, respondents could be kept in the ADU simply because of the security risk they posed.4 After hearings, 4 The relevant regulation indicates that respondents could be placed in the ADU while a criminal investigation is pending because they pose a threat to themselves or others: “The Warden may also place an inmate in administrative detention when the inmate’s continued presence in the general population poses a serious threat to life, property, self, staff, or other inmates or to the security or orderly running of the institution and when the inmate: “(1) Is pending a hearing for a violation of Bureau regulations; “(2) Is pending an investigation of a violation of Bureau regulations; “(3) Is pending investigation or trial for a criminal act. . . .” 28 CFR § 541.22(a) (1983). The Court of Appeals construed the Bureau of Prisons’ regulations to permit detention for disciplinary purposes for no more than 90 days. See 704 F. 2d 1116,1124-1125 (CA9 1983) (en banc). Assuming that construction is correct, the fact that respondents’ detention after that point was not disciplinary does not mean it was therefore accusatory. To the contrary, the applicable regulation states: “Administrative detention is to be used only for short periods of time except where an inmate needs long-term protection . . . , or where there are exceptional circumstances, ordinarily tied to security or complex investigative concerns.” 28 CFR § 541.22(c)(1) 198 OCTOBER TERM, 1983 Stevens, J., concurring in judgment 467 U. S. prison administrators had concluded that respondents likely had murdered fellow inmates. Under such circumstances there can be no doubt that concern for the welfare of other inmates or respondents themselves fully justified administrative detention entirely apart from its relation to an ongoing criminal investigation. See Hewitt v. Helms, 459 U. S. 460, 473-476 (1983). Indeed, there is no finding in either of these consolidated cases that respondents were placed in the ADU at the behest of prosecutorial authorities or in order to aid prosecutorial efforts, nor is there a finding that their detention facilitated the investigation of the two murders at issue.5 On this record there is no reason to believe that the segregation of suspected murderers from the general prison population either was intended to or had the effect of facilitating a criminal investigation rather than simply serving legitimate institutional policies. Accordingly, while I find no Sixth Amendment violation in this case, to the extent that the Court purports to formulate a (198 3) (emphasis supplied). Thus, the regulation permits continued detention for security reasons alone. Finally, even if respondents’ detention was in violation of the regulations, that does not establish that the detention, even if improper, had the purpose or effect of facilitating the criminal investigation. 6 Justice Marshall disagrees with this view of the record, relying on the District Court’s statement that respondents Mills and Pierce’s confinement to the ADU “was neither a form of prison discipline nor an attempt to ensure prison security,” see post, at 200 (dissenting opinion). However, the District Court did not denominate this statement as a “finding of fact,” but rather as a “conclusion of law.” App. to Pet. for Cert. 47a-48a. The only factual predicate to this conclusion, indeed the only fact the District Court found with respect to the purpose and effect of respondents’ segregation, was that the Bureau of Prisons’ usual policies “would have required the [respondent]s’ release back into the general prison population or their transfer to a more secure facility within the first few months after their ADU commitment,” id., at 43a. For the reasons stated in n. 4, supra, this finding is insufficient as a matter of law to support the Court of Appeals’ judgment. UNITED STATES v. GOUVEIA 199 180 Marshall, J., dissenting rule broader than necessary to decide the case before it, I cannot join its opinion. Justice Marshall, dissenting. The majority misreads the development of Sixth Amendment doctrine when it states that “our cases have long recognized that the right to counsel attaches only at or after the initiation of adversary judicial proceedings against the defendant.” Ante, at 187. As Justice Stevens demonstrates, ante, at 193-197, we have recognized that in certain situations an individual’s right to counsel is triggered before the formal initiation of adversary judicial proceedings. See, e. g., Escobedo v. Illinois, 378 U. S. 478, 485-492 (1964). This recognition has stemmed from an appreciation that the government can transform an individual into an “accused” without officially designating him as such through the ritual of arraignment. Moreover, I agree with Justice Stevens that the government treats an individual as an accused when that individual “is deprived of liberty in order to aid the prosecution in its attempt to convict him, and when the deprivation is likely to have the intended effect. . . .” Ante, at 197. Unlike Justice Stevens, however, I reject the judgment as well as the reasoning of the Court. Justice Stevens concurs in the judgment of the Court because, in his view, the transfer of respondents from the general prison population to the far harsher constraints of administrative detention 1 did not in any way serve “an accusatorial function” but served instead to further the security interests of the correctional institution and the welfare of respondents themselves. Ibid. My reading of the record and of the factfinding of 1 Subjection to administrative detention meant that respondents were confined in individual cells except for short daily exercise periods, that their participation in various prison programs was curtailed, and that they were denied access to the general prison population. See 704 F. 2d 1116, 1118 (1983). 200 OCTOBER TERM, 1983 Marshall, J., dissenting 467 U. S. the courts below leads me to a different conclusion. With respect to respondents Mills and Pierce, the District Court stated, in the portion of its opinion entitled “Factual Background,” that by the time they were committed to administrative detention, “the finger of suspicion” had already been pointed at them. App. to Pet. for Cert. 45a-46a. This finding is corroborated by prison officials’ own notation that respondents were to be detained in administrative detention “pending investigation or trial for a criminal act,” App. 138-139, and by the odd course of events that transpired after respondents’ detention: the Government’s delay in seeking indictments alongside the unusually long period during which respondents were confined to their cells. See App. to Pet. for Cert. 42a-47a. The District Court was therefore justified in concluding that respondents’ “commitment to [administrative detention] was neither a form of prison discipline nor an attempt to ensure prison security,” but was instead “part and parcel of a sequence of prosecutive acts integrally related to the application of criminal sanctions.” Id., at 47a-48a. The District Court’s findings and conclusion were noted and affirmed by the Court of Appeals. 704 F. 2d 1116, 1125 (1983). This Court has repeatedly stated that it “‘cannot undertake to review concurrent findings of fact by two courts below in the absence of a very obvious and exceptional showing of error.’” See Berenyi v. District Director, INS, 385 U. S. 630, 635 (1967), quoting Graver Mfg. Co. v. Linde Co., 336 U. S. 271, 275 (1949). In this case no such showing of error has been made. We do not have the benefit of a trial judge’s explicit factual findings with respect to respondents Reynoso, Segura, Ramirez, and Gouveia. However, we do have the Government’s admission that one reason all of the respondents were kept in administrative detention was “because of the pendency of the criminal investigation . . . .” Brief for United States 26. This admission further supports the Court of Appeals’ conclusion that “each [respondent] was held in UNITED STATES v. GOUVEIA 201 180 Marshall, J., dissenting [administrative detention] at least in part as a result of pending criminal charges.” 704 F. 2d, at 1125. Because of their disposition of the Sixth Amendment issue, neither the majority nor Justice Stevens reaches the other issue posed by this case: whether the Court of Appeals erred by dismissing the indictments against respondents. The Government claims that dismissing the indictments was inconsistent with this Court’s decision in United States v. Morrison, 449 U. S. 361 (1981). In Morrison, we reversed the dismissal of an indictment in a case in which it was assumed, arguendo, that a Sixth Amendment violation had occurred and in which the defendant “demonstrated no prejudice of any kind ... to the ability of her counsel to provide adequate representation . . . .” Id., at 366. We stated that, in right-to-counsel cases, dismissal of an indictment is inappropriate “absent demonstrable prejudice, or substantial threat thereof,” id., at 365, because a presumption of prejudice would contravene “the general rule that remedies should be tailored to the injury suffered . . . and should not unnecessarily infringe on competing interests.” Id., at 364. The Court of Appeals concluded that dismissal of respondents’ indictments was warranted under both the Morrison standard and a presumption-of-prejudice standard that it found to be appropriate to the facts of this case. The Court of Appeals felt compelled to articulate an alternative to the Morrison standard because, in its view, this case was “fundamentally different” insofar as the right-to-counsel violation affected inmate-suspects held in administrative detention. 704 F. 2d, at 1126. The Court of Appeals concluded that in such a setting a presumption of prejudice would be appropriate “because ordinarily it will be impossible adequately either to prove or refute its existence.” Ibid. I disagree with the Court of Appeals; its own application of Morrison to the facts of this case demonstrates that even in the context of a Sixth Amendment violation affecting prisoners, the usual process of case-specific inquiry will be adequate to determine 202 OCTOBER TERM, 1983 Marshall, J., dissenting 467 U. S. whether dismissal of an indictment is warranted. The Court of Appeals concluded that even without an assumption of prejudice “there is evidence that ‘substantial prejudice’ may have occurred” in this case. 704 F. 2d, at 1126. This conclusion satisfies the Morrison requirement that persons seeking dismissal of their indictments must show either “demonstrable prejudice, or substantial threat thereof. . . .” 449 U. S., at 365 (emphasis added). Moreover, it is a conclusion amply supported by the record.2 Because I agree with the result reached by the Court of Appeals, though not with all of its reasoning, I respectfully dissent. 2 The conclusion that respondents Mills and Pierce were prejudiced is especially reliable due to the District Court’s specific finding that “[b]ecause the passage of time has resulted in the irrevocable loss of exculpatory testimony and evidence, the government’s failure to take steps to preserve the defendants’ right to prepare a defense cannot be remedied other than by dismissing the indictment [with prejudice].” App. to Pet. for Cert. 50a. ARIZONA v. RUMSEY 203 Syllabus ARIZONA v. RUMSEY CERTIORARI TO THE SUPREME COURT OF ARIZONA No. 83-226. Argued April 23, 1984—Decided May 29, 1984 Arizona’s statutory capital sentencing scheme provides that, after a murder conviction, the trial judge, with no jury, must conduct a separate sentencing hearing to determine whether death is the appropriate sentence. The judge must choose between two options: death or life imprisonment without possibility of parole for 25 years. The death sentence may not be imposed unless at least one statutory aggravating circumstance is present, but must be imposed if there is one aggravating circumstance and no mitigating circumstance sufficiently substantial to call for leniency. The judge must make findings with respect to each of the statutory aggravating and mitigating circumstances, and the sentencing hearing involves the submission of evidence and the presentation of argument, the State having the burden of proving the existence of aggravating circumstances beyond a reasonable doubt. After a jury convicted respondent of armed robbery and first-degree murder, the trial judge conducted the required sentencing hearing and ultimately found that no aggravating or mitigating circumstances were present. He ruled, contrary to the State’s contention, that the statutory aggravating circumstance relating to killing for pecuniary gain applied only to murders for hire and did not apply to all murders committed in order to obtain money, such as murders committed during a robbery. Accordingly, respondent was sentenced on his murder conviction to life imprisonment without possibility of parole for 25 years, but he was also sentenced to 21 years’ imprisonment for armed robbery, with the sentences to run consecutively. Respondent appealed to the Arizona Supreme Court, challenging the imposition of the consecutive sentences, and the State filed a cross-appeal, contending that the trial court had committed an error of law in interpreting the “pecuniary gain” aggravating circumstance to apply only to contract killings. Rejecting respondent’s challenge to his sentence and ruling for the State on its cross-appeal, the court set aside the life sentence and remanded for redetermination of aggravating and mitigating circumstances and for resentencing on the murder conviction. On remand, the trial court held a new sentencing hearing; rejected respondent’s argument that imposing the death penalty would violate Bullington v. Missouri, 451 U. S. 430; found that the “pecuniary gain” aggravating circumstance was present and that there was no mitigating 204 OCTOBER TERM, 1983 Syllabus 467 U. S. circumstance sufficient to call for leniency; and sentenced respondent to death. On respondent’s mandatory appeal, the Arizona Supreme Court held that under Bullington, respondent’s death sentence violated the Double Jeopardy Clause of the Fifth Amendment and ordered that the sentence be reduced to life imprisonment without possibility of parole for 25 years. Held: The Double Jeopardy Clause prohibits Arizona from sentencing respondent to death. This case is controlled by Bullington, which held that the Double Jeopardy Clause applied to Missouri’s capital sentencing proceeding—barring imposition of the death penalty upon reconviction after an initial conviction, set aside on appeal, had resulted in rejection of the death sentence—because that proceeding was comparable to a trial on the issue of guilt and the initial sentence of life imprisonment in effect acquitted the defendant of the death penalty. The capital sentencing proceeding in Arizona shares the characteristics of the Missouri proceeding that made it resemble a trial for purposes of the Double Jeopardy Clause. Thus, respondent’s initial life sentence constitutes an acquittal of the death penalty, and the State cannot now sentence respondent to death on his conviction for first-degree murder. Although the trial court initially relied on a misconstruction of the statute defining the “pecuniary gain” aggravating circumstance, reliance on an error of law does not change the double jeopardy effects of a judgment that amounts to an acquittal on the merits of the issue in the sentencing proceeding— whether death was the appropriate punishment for respondent’s offense. United States v. Wilson, 420 U. S. 332, distinguished. Pp. 209-212. 136 Ariz. 166, 665 P. 2d 48, affirmed. O’Connor, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Marshall, Blackmun, Powell, and Stevens, JJ., joined. Rehnquist, J., filed a dissenting opinion, in which White, J., joined, post, p. 213. William J. Schafer III argued the cause for petitioner. With him on the brief was Robert K. Corbin, Attorney General of Arizona. James R. Rummage, by appointment of the Court, 465 U. S. 1019, argued the cause and filed a brief for respondent. * *Timothy K. Ford, Jack Greenberg, James M. Nabrit III, and Anthony G. Amsterdam filed a brief for the NAACP Legal Defense and Educational Fund, Inc., as amicus curiae urging affirmance. ARIZONA v. RUMSEY 205 203 Opinion of the Court Justice O’Connor delivered the opinion of the Court. The question presented is whether the Double Jeopardy Clause prohibits the State of Arizona from sentencing respondent to death after the life sentence he had initially received was set aside on appeal. We agree with the Supreme Court of Arizona that Bullington v. Missouri, 451 U. S. 430 (1981), squarely controls the disposition of this case. Under the interpretation of the Double Jeopardy Clause adopted in that decision, imposition of the death penalty on respondent would be unconstitutional. I An Arizona jury convicted respondent of armed robbery and first degree murder. The trial judge, with no jury, then conducted a separate sentencing hearing to determine, according to the statutory scheme for considering aggravating and mitigating circumstances, Ariz. Rev. Stat. Ann. § 13-703 (Supp. 1983-1984), whether death was the appropriate sentence for the murder conviction. Petitioner, relying entirely on the evidence presented at trial, argued that three statutory aggravating circumstances were present. Respondent, presenting only one witness, countered that no aggravating circumstances were present but that several mitigating circumstances were. One of the principal points of contention concerned the scope of Ariz. Rev. Stat. Ann. § 13-703(F)(5) (Supp. 1983-1984), which defines as an aggravating circumstance the murder’s commission “as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value.” Respondent argued that this provision applies only to murders for hire, whereas petitioner argued that it applies to all murders committed in order to obtain money. Several days after the sentencing hearing, the trial judge, who imposes sentence without the assistance of a jury under the Arizona scheme, returned a “special verdict” setting forth his findings on each of the statutory aggravating and mitigating circumstances. The judge found that no aggravating or mitigating circumstances were present. App. 53-58. In 206 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. particular, with respect to the aggravating circumstance defined in § 13-703(F)(5), the trial judge found: “5. The defendant did not commit the offense as consideration for the receipt or in expectation of the receipt of anything of pecuniary value. “In this regard, the Court does not agree with the State’s interpretation of A. R. S. 13-703(F)(5) and State v. Madsen filed March 26, 1980. The Court believes that when A. R. S. 13-703(F)(4) and (5) are read together that they are intended to apply to a contract-type killing situation and not to a robbery, burglary, etc.” App. 54-55. Having found no aggravating circumstances, the trial court was statutorily barred from sentencing respondent to death. Ariz. Rev. Stat. Ann. § 13-703(E) (Supp. 1983-1984); App. to Pet. for Cert. A-3. The court accordingly sentenced respondent to life imprisonment without possibility of parole for 25 years, the sentence statutorily mandated for first degree murder when the death penalty is not imposed. Ariz. Rev. Stat. Ann. § 13-703(A) (Supp. 1983-1984). With respect to the armed robbery conviction, the court found that respondent had committed a “dangerous offense” involving use of a deadly weapon and that there was an aggravating circumstance not outweighed by any mitigating circumstance—respondent had “planned this robbery ... in order to obtain what [he] knew was only a few hundred dollars . . . .” App. 66. As authorized by Arizona law, Ariz. Rev. Stat. Ann. §§ 13-604 and 13-702 (1978 and Supp. 1983-1984), the court accordingly sentenced respondent to 21 years’ imprisonment for armed robbery. The prison terms for the two convictions were to run consecutively. Respondent appealed the judgment to the Supreme Court of Arizona, arguing that imposition of consecutive sentences in his case violated both federal and state law. Under Arizona law, Ariz. Rev. Stat. Ann. § 13-4032(4) (1978), respondent’s appeal permitted petitioner to file a cross-appeal from ARIZONA v. RUMSEY 207 203 Opinion of the Court the life sentence; in that cross-appeal petitioner contended that the trial court had committed an error of law in interpreting the pecuniary gain aggravating circumstance to apply only to contract killings. The State Supreme Court rejected respondent’s challenge to his sentence. It agreed with petitioner, however, that the trial court had misinterpreted § 13-703(F)(5): “theft committed in the course of a murder” could constitute an aggravating circumstance under that section. 130 Ariz. 427, 431, 636 P. 2d 1209, 1213 (1981). Because of the trial court’s misinterpretation, the State Supreme Court concluded, “the sentence of life imprisonment previously imposed will have to be set aside and the matter remanded for redetermination of aggravating and mitigating circumstances and resentencing.” Id., at 432, 636 P. 2d, at 1214. The sentence for armed robbery was left undisturbed. On remand the trial court held a new sentencing hearing. Neither petitioner nor respondent presented any new evidence, although they had the opportunity to do so. The court heard argument, however, both on the lawfulness of imposing the death penalty on resentencing and on the presence of aggravating and mitigating circumstances. Petitioner argued that neither federal nor state law barred sentencing respondent to death. Petitioner also urged the court to find the three statutory aggravating circumstances identified at the first sentencing, largely repeating the arguments it had made at the first proceeding. App. 78-94. Respondent argued that imposing the death penalty would violate Bullington v. Missouri, 451 U. S. 430 (1981), North Carolina n. Pearce, 395 U. S. 711 (1969), and Arizona Rule of Criminal Procedure 26.14, which implements the resentencing principles of the Pearce case. With respect to aggravating and mitigating circumstances, respondent effectively conceded the presence of the pecuniary gain aggravating circumstance, thinking the issue foreclosed by a statement in the opinion of the State Supreme Court. See App. 104; 130 Ariz., at 431, 636 P. 2d, at 1213 (“In the instant case, the hope of financial gain was a cause of the murder . . .”). But 208 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. respondent contended that this aggravating circumstance was outweighed by a statutory mitigating circumstance not among the five enumerated in the death sentencing statute: according to the testimony of the jury foreperson, the conviction for first degree murder was based on the felony-murder instruction, not on the premeditation instruction; thus, respondent contended, to regard the theft as an aggravating circumstance after using it to elevate second degree murder into first would be a form of double counting. App. 94-108. Several days after the hearing, the trial court returned a special verdict reciting findings on each of the statutory aggravating and mitigating circumstances and on the one nonstatutory mitigating circumstance urged by respondent. The court found to be present only one of the seven statutory aggravating circumstances, namely, § 13-703(F)(5), concerning commission of the murder for pecuniary gain. The court also found that none of the five statutory mitigating circumstances was present and that the fact that the murder conviction was for felony murder, if a mitigating circumstance at all, was not sufficiently substantial to call for leniency. App. 118-124. Accordingly, as required under Arizona law, Ariz. Rev. Stat. Ann. §13-703(E) (Supp. 1983-1984), the court sentenced respondent to death. In his mandatory appeal to the Supreme Court of Arizona, respondent argued that imposition of the death sentence on resentencing, after he had effectively been “acquitted” of death at his initial sentencing, violated the Double Jeopardy Clause of the Fifth Amendment, as applied to the States by the Fourteenth Amendment. Benton n. Maryland, 395 U. S. 784 (1969). He also argued that the death sentence violated the Due Process Clause of the Fourteenth Amendment, as interpreted in North Carolina v. Pearce, supra. The Supreme Court of Arizona addressed only the first argument. It concluded that, under this Court’s decision in Bullington v. Missouri, supra, respondent’s sentence violated the constitutional prohibition on double jeopardy. 136 Ariz. 166, 665 P. 2d 48 (1983). The court therefore ordered ARIZONA v. RUMSEY 209 203 Opinion of the Court respondent’s sentence for first degree murder reduced to life imprisonment without possibility of parole for 25 years. The State of Arizona filed a petition for a writ of certiorari. We granted certiorari, 464 U. S. 1038 (1983), and now affirm. II In Bullington v. Missouri this Court held that the Double Jeopardy Clause applies to Missouri’s capital sentencing proceeding and thus bars imposition of the death penalty upon reconviction after an initial conviction, set aside on appeal, has resulted in rejection of the death sentence. The Court identified several characteristics of Missouri’s sentencing proceeding that make it comparable to a trial for double jeopardy purposes. The discretion of the sentencer—the jury in Missouri—is restricted to precisely two options: death, and life imprisonment without possibility of release for 50 years. In addition, the sentencer is to make its decision guided by substantive standards and based on evidence introduced in a separate proceeding that formally resembles a trial. Finally, the prosecution has to prove certain statutorily defined facts beyond a reasonable doubt in order to support a sentence of death. 451 U. S., at 438. For these reasons, when the Missouri sentencer imposes a sentence of life imprisonment in a capital sentencing proceeding, it has determined that the prosecution has failed to prove its case. Because the Court believed that the anxiety and ordeal suffered by a defendant in Missouri’s capital sentencing proceeding are the equal of those suffered in a trial on the issue of guilt, the Court concluded that the Double Jeopardy Clause prohibits the State from resentencing the defendant to death after the sentencer has in effect acquitted the defendant of that penalty. The capital sentencing proceeding in Arizona shares the characteristics of the Missouri proceeding that make it resemble a trial for purposes of the Double Jeopardy Clause. The sentencer—the trial judge in Arizona—is required to choose between two options: death, and life imprisonment 210 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. without possibility of parole for 25 years. The sentencer must make the decision guided by detailed statutory standards defining aggravating and mitigating circumstances; in particular, death may not be imposed unless at least one aggravating circumstance is found, whereas death must be imposed if there is one aggravating circumstance and no mitigating circumstance sufficiently substantial to call for leniency. The sentencer must make findings with respect to each of the statutory aggravating and mitigating circumstances, and the sentencing hearing involves the submission of evidence and the presentation of argument. The usual rules of evidence govern the admission of evidence of aggravating circumstances, and the State must prove the existence of aggravating circumstances beyond a reasonable doubt. See Ariz. Rev. Stat. Ann. §13-703 (Supp. 1983-1984); 136 Ariz., at 171-172, 665 P. 2d, at 53-54. As the Supreme Court of Arizona held, these characteristics make the Arizona capital sentencing proceeding indistinguishable for double jeopardy purposes from the capital sentencing proceeding in Missouri. Id., at 171-174, 665 P. 2d, at 53-56. That the sentencer in Arizona is the trial judge rather than the jury does not render the sentencing proceeding any less like a trial. See United States v. Morrison, 429 U. S. 1, 3 (1976) (Double Jeopardy Clause treats bench and jury trials alike). Nor does the availability of appellate review, including reweighing of aggravating and mitigating circumstances, make the appellate process part of a single continuing sentencing proceeding. The Supreme Court of Arizona noted that its role is strictly that of an appellate court, not a trial court. Indeed, no appeal need be taken if life imprisonment is imposed, and the appellate re weighing can work only to the defendant’s advantage. 136 Ariz., at 173-174, 665 P. 2d, at 55-56. In short, a sentence imposed after a completed Arizona capital sentencing hearing is a judgment like the sentence at issue in Bullington v. Missouri, which this Court held triggers the protections of the Double Jeopardy Clause. ARIZONA v. RUMSEY 211 203 Opinion of the Court The double jeopardy principle relevant to respondent’s case is the same as that invoked in Bullington: an acquittal on the merits by the sole decisionmaker in the proceeding is final and bars retrial on the same charge. Application of the Bullington principle renders respondent’s death sentence a violation of the Double Jeopardy Clause because respondent’s initial sentence of life imprisonment was undoubtedly an acquittal on the merits of the central issue in the proceeding— whether death was the appropriate punishment for respondent’s offense. The trial court entered findings denying the existence of each of the seven statutory aggravating circumstances, and as required by state law, the court then entered judgment in respondent’s favor on the issue of death. That judgment, based, on findings sufficient to establish legal entitlement to the life sentence, amounts to an acquittal on the merits and, as such, bars any retrial of the appropriateness of the death penalty. In making its findings, the trial court relied on a misconstruction of the statute defining the pecuniary gain aggravating circumstance. Reliance on an error of law, however, does not change the double jeopardy effects of a judgment that amounts to an acquittal on the merits. “[T]he fact that ‘the acquittal may result from erroneous evidentiary rulings or erroneous interpretations of governing legal principles’ . . . affects the accuracy of that determination, but it does not alter its essential character.” United States v. Scott, 437 U. S. 82, 98 (1978) (quoting id., at 106 (Brennan, J., dissenting)). Thus, this Court’s cases hold that an acquittal on the merits bars retrial even if based on legal error. United States v. Wilson, 420 U. S. 332 (1975), held that the prosecution could appeal from a judgment of acquittal entered by the trial judge after the jury had returned a verdict of guilty. But that holding has no application to this case. No double jeopardy problem was presented in Wilson because the appellate court, upon reviewing asserted legal er 212 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. rors of the trial judge, could simply order the jury’s guilty verdict reinstated; no new factfinding would be necessary, and the defendant therefore would not be twice placed in jeopardy. By contrast, in respondent’s initial capital sentencing, there was only one decisionmaker and only one set of findings of fact, all favorable to respondent. The trial court “acquitted” respondent of the death penalty, and there was no verdict of “guilty” for the appellate court to reinstate. The Supreme Court of Arizona accordingly “remanded for redetermination of aggravating and mitigating circumstances and resentencing,” 130 Ariz., at 432, 636 P. 2d, at 1214—that is, for a second sentencing proceeding similar to the first. Whereas the defendant in Wilson was not to be subjected to a second trial after an acquittal at his first, that is precisely what has happened to respondent. Ill Bullington v. Missouri held that double jeopardy protections attach to Missouri’s capital sentencing proceeding because that proceeding is like a trial. The capital sentencing proceeding in Arizona is indistinguishable for double jeopardy purposes from the proceeding in Missouri. Under Bullington, therefore, respondent’s initial sentence of life imprisonment constitutes an acquittal of the death penalty, and the State of Arizona cannot now sentence respondent to death on his conviction for first degree murder. Petitioner has invited the Court to overrule Bullington, decided only three years ago. We decline the invitation. Although adherence to precedent is not rigidly required in constitutional cases, any departure from the doctrine of stare decisis demands special justification. See, e. g., Swift & Co. v. Wickham, 382 U. S. Ill, 116 (1965); Smith v. Allwright, 321 U. S. 649, 665 (1944). Petitioner has suggested no reason sufficient to warrant our taking the exceptional action of overruling Bullington. ARIZONA v. RUMSEY 213 203 Rehnquist, J., dissenting The judgment of the Supreme Court of Arizona is therefore Affirmed. Justice Rehnquist, with whom Justice White joins, dissenting. Today the Court affirms the decision of the Arizona Supreme Court vacating the death sentence imposed on respondent for a murder committed in the course of an armed robbery. Applying the interpretation given the Double Jeopardy Clause by a bare majority of this Court in Bullington v. Missouri, 451 U. S. 430 (1981), the Court concludes that in this case the first sentencing also amounted to an implied acquittal of respondent’s eligibility for the death penalty. I continue to believe that Bullington was wrongly decided for the reasons expressed in Justice Powell’s dissent in that case. But even apart from those views, I do not believe that the reasoning underlying Bullington applies to this remand for resentencing to correct a legal error. Accordingly, I dissent. The central premise of the Court’s holding today is that the trial court’s first finding—that there were no aggravating and no mitigating circumstances and therefore only a life sentence could be imposed—amounted to an “implied acquittal” on the merits of respondent’s eligibility for the death sentence, thereby barring the possibility of an enhanced sentence upon resentencing by virtue of the Double Jeopardy Clause. But the Court’s continued reliance on the “implied acquittal” rationale of Bullington is simply inapt. Unlike the jury’s decision in Bullington, where the jury had broad discretion to decide whether capital punishment was appropriate, the trial judge’s discretion in this case was carefully confined and directed to determining whether certain specified aggravating factors existed. Compare Mo. Rev. Stat. §565.008 (1979) with Ariz. Rev. Stat. Ann. §13-703(E) 214 OCTOBER TERM, 1983 Rehnquist, J., dissenting 467 U. S. (Supp. 1983-1984). It is obvious from the record that the State established at the first hearing that respondent murdered his victim in the course of an armed robbery, a fact which was undisputed at sentencing. In no sense can it be meaningfully argued that the State failed to “prove” its case—the existence of at least one aggravating circumstance. It is hard to see how there has been an “implied acquittal” of a statutory aggravating circumstance when the record explicitly establishes the factual basis that such an aggravating circumstance existed. But for the trial judge’s erroneous construction of governing state law, the judge would have been required to impose the death penalty. If, as a matter of state law, the Arizona Supreme Court had simply corrected the erroneous sentence itself without remanding, there could be no argument that Bullington would prevent the imposition of the death sentence. That much was made clear in our decision in United States v. Wilson, 420 U. S. 332 (1975). After stating the well-settled rule that an appellate court’s order reversing a conviction is subject to further review without subjecting a defendant to double jeopardy, we wrote: “It is difficult to see why the rule should be any different simply because the defendant has gotten a favorable post verdict ruling of law from the District Judge rather than from the Court of Appeals, or because the District Judge has relied to some degree on evidence presented at trial in making his ruling. Although review of any ruling of law discharging a defendant obviously enhances the likelihood of conviction and subjects him to continuing expense and anxiety, a defendant has no legitimate claim to benefit from an error of law when that error could be corrected without subjecting him to a second trial before a second trier of fact.” Id., at 345. The fact that in this case the legal error was ultimately corrected by the trial court did not mean that the State sought to marshal the same or additional evidence against a ARIZONA v. RUMSEY 215 203 Rehnquist, J., dissenting capital defendant which had proved insufficient to prove the State’s “case” against him the first time. There is no logical reason for a different result here simply because the Arizona Supreme Court remanded the case to the trial court for the purpose of correcting the legal error, particularly when the resentencing did not constitute the kind of “retrial” which the Bullington Court condemned. Accordingly, I would reverse the decision of the Arizona Supreme Court in this case. 216 OCTOBER TERM, 1983 Syllabus 467 U. S. BERNAL v. FAINTER, SECRETARY OF STATE OF TEXAS, et AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 83-630. Argued March 28, 1984—Decided May 30, 1984 Petitioner, a resident alien, applied to the Texas Secretary of State to become a notary public, who under Texas law authenticates written instruments, administers oaths, and takes out-of-court depositions. Petitioner’s application was denied because he failed to satisfy the requirement of a Texas statute (Article 5949(2)) that a notary public be a United States citizen. After an unsuccessful administrative appeal, petitioner (and another individual) brought suit in Federal District Court, claiming that Article 5949(2) violated the Federal Constitution. The District Court ruled in petitioner’s favor, concluding that the citizenship requirement, reviewed under a strict-scrutiny standard, violated the Equal Protection Clause of the Fourteenth Amendment. The Court of Appeals reversed, holding that the proper standard for review was the rational-relationship test and that Article 5949(2) satisfied that test. Held: Article 5949(2) violates the Equal Protection Clause. Pp. 219-228. (a) As a general matter, a state law that discriminates on the basis of alienage can be sustained only if it can withstand strict judicial scrutiny. In order to withstand strict scrutiny, the law must advance a compelling state interest by the least restrictive means available. The “political function” exception to the strict-scrutiny rule applies to laws that exclude aliens from positions intimately related to the process of democratic self-government. Under this exception, the standard of review is lowered when evaluating the validity of exclusions that entrust only to citizens important elective and nonelective positions whose operations go to the heart of representative government. Sugarman n. Dougall, 413 U. S. 634; Cabell v. Chavez-Salido, 454 U. S. 432. Pp. 219-222. (b) The “political function” exception is inapplicable to Article 5949(2). Notaries public do not fall within the category of officials who perform functions that go to the heart of representative government merely because they are designated as public officers by the Texas Constitution. The dispositive factor is the actual function of a position, not its source. The focus of the inquiry is whether the position is such that the officeholder will necessarily exercise broad discretionary power over the formulation or execution of public policies importantly affecting the citizen population. Although there is a critical need for a notary’s duties to be BERNAL v. FAINTER 217 216 Opinion of the Court carried out correctly and with integrity, those duties are essentially clerical and ministerial. Texas notaries are not invested with policymaking responsibility or broad discretion in the execution of public policy that requires the routine exercise of authority over individuals. Cf. In re Griffiths, 413 U. S. 717. Pp. 222-227. (c) Article 5949(2) does not meet the applicable strict-scrutiny standard of judicial review. To satisfy such standard, the State must show that the statute furthers a compelling state interest by the least restrictive means practically available. With regard to the State’s asserted interest in ensuring that notaries are familiar with Texas law, there is nothing in the record indicating that resident aliens, as a class, are so incapable of familiarizing themselves with Texas law as to justify the State’s absolute and classwide exclusion. Furthermore, if the State’s concern were truly “compelling,” one would expect the State to give some sort of test actually measuring a person’s familiarity with the law. The State, however, administers no such test. Similarly inadequate is the State’s purported interest in ensuring the availability of notaries’ testimony years after their acts. The State failed to advance a factual showing that the unavailability of notaries’ testimony presents a real, as opposed to a merely speculative, problem to the State. Pp. 227-228. 710 F. 2d 190, reversed and remanded. Marshall, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, White, Blackmun, Powell, Stevens, and O’Connor, JJ., joined. Rehnquist, J., filed a dissenting opinion, post, p. 228. Cornish F. Hitchcock argued the cause for petitioner. With him on the brief were Alan B. Morrison, John Cary Sims, Thomas Sullivan, and Denis A. Downey. Mary F. Keller, Assistant Attorney General of Texas, argued the cause for respondents. With her on the brief were Jim Mattox, Attorney General, Fernando Gomez, Assistant Attorney General, and David R. Richards. Justice Marshall delivered the opinion of the Court. The question posed by this case is whether a statute of the State of Texas violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution by denying aliens the opportunity to become notaries public. The Court of Appeals for the Fifth Circuit held that the stat 218 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. ute does not offend the Equal Protection Clause. We granted certiorari, 464 U. S. 1007 (1983), and now reverse. I Petitioner, a native of Mexico, is a resident alien who has lived in the United States since 1961. He works as a paralegal for Texas Rural Legal Aid, Inc., helping migrant farmworkers on employment and civil rights matters. In order to administer oaths to these workers and to notarize their statements for use in civil litigation, petitioner applied in 1978 to become a notary public.1 Under Texas law, notaries public authenticate written instruments, administer oaths, and take out-of-court depositions.2 The Texas Secretary of State denied petitioner’s application because he failed to satisfy the statutory requirement that a notary public be a citizen of the United States. Tex. Rev. Civ. Stat. Ann., Art. 5949(2) (Vernon Supp. 1984) (hereafter Article 5949(2)). After an unsuccessful administrative appeal, petitioner brought suit in the Federal District Court, claiming that the citizenship requirement mandated by Article 5942(2) violated the Federal Constitution.3 The District Court ruled in favor of petitioner. Vargas v. Strake, C. A. No. B-79-147 (SD Tex., Oct. 9, 1981) (mem.). It reviewed the State’s citizenship requirement under a 1 Prior to his employment in Texas, petitioner worked in a legal services program in Indiana and held a commission as a notary in that State. Vargas v. Strake, 710 F. 2d 190, 191 (CA5 1983). 2 “Notaries Public shall have the same authority to take acknowledgments or proofs of written instruments, protest instruments permitted by law to be protested, administer oaths, and take depositions, as is now or may hereafter be conferred by law upon County Clerks . . . .” Tex. Rev. Civ. Stat. Ann., Art. 5954 (Vernon Supp. 1984); see also R. Rothman, Notary Public: Practices & Glossary (1978). 3 This suit was initially brought by Margarita M. Vargas whom petitioner joined as a coplaintiff. Vargas is no longer a party to this suit because subsequent to filing her complaint she obtained United States citizenship. Vargas v. Strake, supra, at 192. BERNAL v. FAINTER 219 216 Opinion of the Court strict-scrutiny standard and concluded that the requirement violated the Equal Protection Clause. The District Court also suggested that even under a rational-relationship standard, the state statute would fail to pass constitutional muster because its citizenship requirement “is wholly unrelated to the achievement of any valid state interest.” App. to Pet. for Cert. 11a. A divided panel of the Court of Appeals for the Fifth Circuit reversed, concluding that the proper standard for review was the rational-relationship test and that Article 5949(2) satisfied that test because it “bears a rational relationship to the state’s interest in the proper and orderly handling of a countless variety of legal documents of importance to the state.” Vargas v. Strake, 710 F. 2d 190, 195 (1983).4 II As a general matter, a state law that discriminates on the basis of alienage can be sustained only if it can withstand strict judicial scrutiny.5 In order to withstand strict scrutiny, the law must advance a compelling state interest by the least restrictive means available.6 Applying this principle, 4 The holding of the Court of Appeals conflicts with the holding of every other state and federal court decision that has considered the constitutionality of statutes barring aliens from eligibility to become notaries public. See, e. g., JU v. Rhodes, 577 F. Supp. 1128 (SD Ohio 1983) (invalidating Ohio statute); Cheng v. Illinois, 438 F. Supp. 917 (ND Ill. 1977) (invalidating Illinois statute); Taggart v. Mandel, 391 F. Supp. 733 (Md. 1975) (invalidating Maryland statute) (three-judge court); Graham v. Ramani, 383 So. 2d 634 (Fla. 1980) (invalidating Florida statute). 6 “[Classifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny. Aliens as a class are a prime example of a ‘discrete and insular’ minority . . . for whom such heightened judicial solicitude is appropriate.” Graham v. Richardson, 403 U. S. 365, 372 (1971) (footnotes and citations omitted). 6 Only rarely are statutes sustained in the face of strict scrutiny. As one commentator observed, strict-scrutiny review is “strict” in theory but usually “fatal” in fact. Gunther, The Supreme Court, 1971 Term—Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1, 8 (1972). 220 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. we have invalidated an array of state statutes that denied aliens the right to pursue various occupations. In Sugarman v. Dougall, 413 U. S. 634 (1973), we struck down a state statute barring aliens from employment in permanent positions in the competitive class of the state civil service. In In re Griffiths, 413 U. S. 717 (1973), we nullified a state law excluding aliens from eligibility for membership in the State Bar. And in Examining Board v. Flores de Otero, 426 U. S. 572 (1976), we voided a state law that excluded aliens from the practice of civil engineering. We have, however, developed a narrow exception to the rule that discrimination based on alienage triggers strict scrutiny. This exception has been labeled the “political function” exception and applies to laws that exclude aliens from positions intimately related to the process of democratic self-government. The contours of the “political function” exception are outlined by our prior decisions. In Foley v. Connelie, 435 U. S. 291 (1978), we held that a State may require police to be citizens because, in performing a fundamental obligation of government, police “are clothed with authority to exercise an almost infinite variety of discretionary powers” often involving the most sensitive areas of daily life. Id., at 297. In Ambach v. Norwick, 441 U. S. 68 (1979), we held that a State may bar aliens who have not declared their intent to become citizens from teaching in the public schools because teachers, like police, possess a high degree of responsibility and discretion in the fulfillment of a basic governmental obligation. They have direct, day-to-day contact with students, exercise unsupervised discretion over them, act as role models, and influence their students about the government and the political process. Id., at 78-79. Finally, in Cabell v. Chavez-Salido, 454 U. S. 432 (1982), we held that a State may bar aliens from positions as probation officers because they, like police and teachers, routinely exercise discretionary power, involving a basic governmental function, that places them in a position of direct authority over other individuals. BERNAL v. FAINTER 221 216 Opinion of the Court The rationale behind the political-function exception is that within broad boundaries a State may establish its own form of government and limit the right to govern to those who are full-fledged members of the political community. Some public positions are so closely bound up with the formulation and implementation of self-government that the State is permitted to exclude from those positions persons outside the political community, hence persons who have not become part of the process of democratic self-determination. “The exclusion of aliens from basic governmental processes is not a deficiency in the democratic system but a necessary consequence of the community’s process of political self-definition. Self-government, whether direct or through representatives, begins by defining the scope of the community of the governed and thus of the governors as well: Aliens are by definition those outside of this community.” Id., at 439-440. We have therefore lowered our standard of review when evaluating the validity of exclusions that entrust only to citizens important elective and nonelective positions whose operations “go to the heart of representative government.” Sugarman v. Dougall, supra, at 647. “While not retreating from the position that restrictions on lawfully resident aliens that primarily affect economic interests are subject to heightened judicial scrutiny ... we have concluded that strict scrutiny is out of place when the restriction primarily serves a political function. ...” Cabell v. Chavez-Salido, supra, at 439 (citation omitted). To determine whether a restriction based on alienage fits within the narrow political-function exception, we devised in Cabell a two-part test. “First, the specificity of the classification will be examined: a classification that is substantially overinclusive or underinclusive tends to undercut the governmental claim that the classification serves legitimate political ends. . . . Second, even if the classification is sufficiently 222 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. tailored, it may be applied in the particular case only to ‘persons holding state elective or important nonelective executive, legislative, and judicial positions,’ those officers who ‘participate directly in the formulation, execution, or review of broad public policy’ and hence ‘perform functions that go to the heart of representative government.’” 454 U. S., at 440 (quoting Sugarman v. Dougall, supra, at 647).7 III We now turn to Article 5949(2) to determine whether it satisfies the Cabell test. The statute provides that “[t]o be eligible for appointment as a Notary Public, a person shall be a resident citizen of the United States and of this state ...” Unlike the statute invalidated in Sugarman, Article 5949(2) does not indiscriminately sweep within its ambit a wide range of offices and occupations but specifies only one particular post with respect to which the State asserts a right to exclude aliens. Clearly, then, the statute is not overinclusive; it applies narrowly to only one category of persons: those wishing to obtain appointments as notaries. Less clear is whether Article 5949(2) is fatally under inclusive. Texas does not require court reporters to be United States citizens even though they perform some of the same services as notaries.8 Nor does Texas require that its Secretary of State be a citizen,9 even though he holds the highest appointive posi- 7 We emphasize, as we have in the past, that the political-function exception must be narrowly construed; otherwise the exception will swallow the rule and depreciate the significance that should attach to the designation of a group as a “discrete and insular” minority for whom heightened judicial solicitude is appropriate. See Nyquist v. Mauclet, 432 U. S. 1, 11 (1977). 8 Like notaries public, court reporters are authorized to administer oaths and take depositions. Tex. Rev. Civ. Stat. Ann., Art. 2324a(l) (Vernon 1971). 9 Texas appears to require only that the Secretary of State be appointed by the Governor with the advice and consent of the Senate. See Tex. Const., Art. IV, § 21. Respondents, moreover, implicitly concede that the State imposes no citizenship requirement upon the position of Secretary of BERNAL v. FAINTER 223 216 Opinion of the Court tion in the State and performs many important functions, including supervision of the licensing of all notaries public.10 We need not decide this issue, however, because of our decision with respect to the second prong of the Cabell test. In support of the proposition that notaries public fall within that category of officials who perform functions that “go to the heart of representative government,” the State emphasizes that notaries are designated as public officers by the Texas Constitution.11 Texas maintains that this designation indicates that the State views notaries as important officials occupying posts central to the State’s definition of itself as a political community. This Court, however, has never deemed the source of a position—whether it derives from a State’s statute or its Constitution—as the dispositive factor in determining whether a State may entrust the position only to citizens. Rather, this Court has always looked to the actual function of the position as the dispositive factor.12 The State. See Brief for Respondents 21-24 (distinguishing notaries public and other officers subject to a citizenship requirement from Secretary of State). 10See Tex. Rev. Civ. Stat. Ann., Art. 5949(3) (Vernon Supp. 1984). 11 The Texas Constitution provides that “[t]he Secretary of State shall appoint a convenient number of Notaries Public for the state. . . .” Art. IV, § 26. Texas is one of only six States in which the State Constitution provides for the appointment of notaries. 1 G. Braden et al., The Constitution of the State of Texas: An Annotated and Comparative Analysis 361-362 (1977) (hereinafter Braden). 12 We note, moreover, that although authorization for the appointment of notaries public has long been a feature of the Texas Constitution, the significance of the position has necessarily been diluted by changes in the appointment process and by the wholesale proliferation of notaries. The Texas Constitution of 1845 authorized the appointment of only six notaries per county and directed that they be appointed by the Governor with the advice and consent of the State Senate. Braden 361. By contrast, the Texas Constitution now authorizes the Secretary of State to appoint a “convenient” number of notaries for each county. Art. IV, § 26; see also Braden 361-362. Counsel for respondents conceded at oral argument that the number of Texas notaries exceeds 100,000. Tr. of Oral Arg. 17 (“I believe, reading Petitioner’s brief, that there are in excess of 100,000. Maybe there are 300,000 notaries”). 224 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. focus of our inquiry has been whether a position was such that the officeholder would necessarily exercise broad discretionary power over the formulation or execution of public policies importantly affecting the citizen population—power of the sort that a self-governing community could properly entrust only to full-fledged members of that community. As the Court noted in Cabell, in determining whether the function of a particular position brings the position within the narrow ambit of the exception, “the Court will look to the importance of the function as a factor giving substance to the concept of democratic self-government.” 454 U. S., at 441, n. 7. The State maintains that even if the actual function of a post is the touchstone of a proper analysis, Texas notaries public should still be classified among those positions from which aliens can properly be excluded because the duties of Texas notaries entail the performance of functions sufficiently consequential to be deemed “political.”13 The Court of Appeals ably articulated this argument: “With the power to acknowledge instruments such as wills and deeds and leases and mortgages; to take out-of-court depositions; to administer oaths; and the discretion to refuse to perform any of the foregoing acts, notaries public in Texas are involved in countless matters of importance to the day-to-day functioning of state government. The Texas political community depends upon the notary public to insure that those persons executing documents are accurately identified, to refuse to certify any identification that is false or uncertain, and to insist that 13 “Notaries Public shall have the same authority to take acknowledgments or proofs of written instruments, protest instruments permitted by law to be protested, administer oaths, and take depositions, as is now or may hereafter be conferred by law upon County Clerks. . . .” Tex. Rev. Civ. Stat. Ann., Art. 5954 (Vernon Supp. 1984). County clerks are authorized to record and acknowledge a wide range of documents. Art. 6591 (Vernon 1969) (“County clerks shall be the recorders for their respective counties”). BERNAL v. FAINTER 225 216 Opinion of the Court oaths are properly and accurately administered. Land titles and property succession depend upon the care and integrity of the notary public, as well as the familiarity of the notary with the community, to verify the authenticity of the execution of the documents.” 710 F. 2d, at 194. We recognize the critical need for a notary’s duties to be carried out correctly and with integrity. But a notary’s duties, important as they are, hardly implicate responsibilities that go to the heart of representative government. Rather, these duties are essentially clerical and ministerial. In contrast to state troopers, Foley v. Connelie, 435 U. S. 291 (1978), notaries do not routinely exercise the State’s monopoly of legitimate coercive force.14 Nor do notaries routinely exercise the wide discretion typically enjoyed by public school teachers when they present materials that educate youth respecting the information and values necessary for the maintenance of a democratic political system. See Ambach v. Norwick, 441 U. S., at 77. To be sure, considerable damage could result from the negligent or dishonest performance of a notary’s duties. But the same could be said for the duties 14 At oral argument, counsel for respondents observed in passing that Texas authorizes notaries to subpoena witnesses for the purpose of obtaining testimony regarding the authenticity of a document, Tex. Rev. Civ. Stat. Ann., Art. 6616 (Vernon 1969), and also authorizes notaries to enforce this authority with civil contempt powers. Art. 6618. We do not consider the notary’s apparent power to hold persons in contempt at all analogous to the coercive power routinely exercised by policemen, judges, or other officers charged with the administration of justice. One indication that this power is merely formal with no relevance to day-to-day experience is that it seems to have figured in only two reported cases, the most recent of which was decided over 40 years ago in 1942. See Ex parte Wolf, 116 Tex. Crim. 127, 34 S. W. 2d 277 (1930); Harbison v. McMurray, 138 Tex. 192, 158 S. W. 2d 284 (1942). That it was not even mentioned in respondents’ brief is a further indication that this power is moribund. Cf. JU v. Rhodes, 577 F. Supp., at 1131 (political-function exception not applicable to notary public notwithstanding notary’s statutory authorization to hold recalcitrant witness in contempt). 226 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. performed by cashiers, building inspectors, the janitors who clean up the offices of public officials, and numerous other categories of personnel upon whom we depend for careful, honest service. What distinguishes such personnel from those to whom the political-function exception is properly applied is that the latter are invested either with policymaking responsibility or broad discretion in the execution of public policy that requires the routine exercise of authority over individuals. Neither of these characteristics pertains to the functions performed by Texas notaries. The inappropriateness of applying the political-function exception to Texas notaries is further underlined by our decision in In re Griffiths, 413 U. S. 634 (1973), in which we subjected to strict scrutiny a Connecticut statute that prohibited noncitizens from becoming members of the State Bar. Along with the usual powers and privileges accorded to members of the bar, Connecticut gave to members of its Bar additional authority that encompasses the very duties performed by Texas notaries—authority to “‘sign writs and subpoenas, take recognizances, administer oaths and take depositions and acknowledgements of deeds.’” Id., at 723 (quoting Connecticut statute).15 In striking down Connecticut’s citizenship requirement, we concluded that “[i]t in no way denigrates a lawyer’s high responsibilities to observe that [these duties] hardly involve matters of state policy or acts of such unique responsibility as to entrust them only to citizens.” Id., at 724. If it is improper to apply the political-function exception to a citizenship requirement governing eligibility for membership in a state bar, it would be anomalous to apply the exception to the citizenship requirement that governs eligibility to become a Texas notary. We conclude, then, that 16 In Connecticut, members of the Bar were empowered to function both as attorneys and as commissioners of the Superior Court. The former position entailed lawyer’s work; the latter, work that is often performed by notaries public. See In Re Griffiths, 413 U. S., at 723-725. BERNAL v. FAINTER 227 216 Opinion of the Court the “political function” exception is inapplicable to Article 5949(2) and that the statute is therefore subject to strict judicial scrutiny. IV To satisfy strict scrutiny, the State must show that Article 5949(2) furthers a compelling state interest by the least restrictive means practically available. Respondents maintain that Article 5949(2) serves its “legitimate concern that notaries be reasonably familiar with state law and institutions” and “that notaries may be called upon years later to testify to acts they have performed.” Brief for Respondents 24-25. However, both of these asserted justifications utterly fail to meet the stringent requirements of strict scrutiny. There is nothing in the record that indicates that resident aliens, as a class, are so incapable of familiarizing themselves with Texas law as to justify the State’s absolute and classwide exclusion. The possibility that some resident aliens are unsuitable for the position cannot justify a wholesale ban against all resident aliens. Furthermore, if the State’s concern with ensuring a notary’s familiarity with state law were truly “compelling,” one would expect the State to give some sort of test actually measuring a person’s familiarity with the law. The State, however, administers no such test. To become a notary public in Texas, one is merely required to fill out an application that lists one’s name and address and that answers four questions pertaining to one’s age, citizenship, residency, and criminal record16—nothing that reflects the State’s asserted interest in ensuring that notaries are familiar with Texas law. Similarly inadequate is the State’s purported interest in ensuring the later availability of notaries’ testimony. This justification fails because the State fails to advance a factual showing that the unavailability of notaries’ testimony presents a real, as opposed to a merely specula 16See Tex. Rev. Civ. Stat. Ann., Art. 5949(3)(a) (Vernon Supp. 1984). 228 OCTOBER TERM, 1983 Rehnquist, J., dissenting 467 U. S. tive, problem to the State. Without a factual underpinning, the State’s asserted interest lacks the weight we have required of interests properly denominated as compelling.17 V We conclude that Article 5949(2) violates the Fourteenth Amendment of the United States Constitution. Accordingly the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Rehnquist, dissenting. I dissent for the reasons stated in my dissenting opinion in Sugarman v. Dougall, 413 U. S. 634, 649 (1973). 17 The State did not even attempt to defend the statute against strict scrutiny, perhaps recognizing that such a defense would be futile. Rather, the State simply asserted that the statute could withstand the lesser scrutiny of rationality review. See Brief for Respondents 24. HAWAII HOUSING AUTHORITY v. MIDKIFF 229 Syllabus HAWAII HOUSING AUTHORITY ET AL. v. MIDKIFF ET AL. APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 83-141. Argued March 26, 1984—Decided May 30, 1984* To reduce the perceived social and economic evils of a land oligopoly traceable to the early high chiefs of the Hawaiian Islands, the Hawaii Legislature enacted the Land Reform Act of 1967 (Act), which created a land condemnation scheme whereby title in real property is taken from lessors and transferred to lessees in order to reduce the concentration of land ownership. Under the Act, lessees living on single-family residential lots within tracts at least five acres in size are entitled to ask appellant Hawaii Housing Authority (HHA) to condemn the property on which they live. When appropriate applications by lessees are filed, the Act authorizes HHA to hold a public hearing to determine whether the State’s acquisition of the tract will “effectuate the public purposes” of the Act. If HHA determines that these public purposes will be served, it is authorized to designate some or all of the lots in the tract for acquisition. It then acquires, at prices set by a condemnation trial or by negotiation between lessors and lessees, the former fee owners’ “right, title, and interest” in the land, and may then sell the land titles to the applicant lessees. After HHA had held a public hearing on the proposed acquisition of appellees’ lands and had found that such acquisition would effectuate the Act’s public purposes, it directed appellees to negotiate with certain lessees concerning the sale of the designated properties. When these negotiations failed, HHA ordered appellees to submit to compulsory arbitration as provided by the Act. Rather than comply with this order, appellees filed suit in Federal District Court, asking that the Act be declared unconstitutional and that its enforcement be enjoined. The court temporarily restrained the State from proceeding against appellees’ estates, but subsequently, while holding the compulsory arbitration and compensation formulae provisions of the Act unconstitutional, refused to issue a preliminary injunction and ultimately granted partial summary judgment to HHA and private appellants who had intervened, holding *Together with No. 83-236, Portlock Community Association (Ma-unalua Beach) et al. v. Midkiff et al.; and No. 83-283, Kahala Community Association, Inc., et al. v. Midkiff et al., also on appeal from the same court. 230 OCTOBER TERM, 1983 Syllabus 467 U. S. the remainder of the Act constitutional under the Public Use Clause of the Fifth Amendment, made applicable to the States under the Fourteenth Amendment. After deciding that the District Court had properly not abstained from exercising its jurisdiction, the Court of Appeals reversed, holding that the Act violates the “public use” requirement of the Fifth Amendment. Held: 1. The District Court was not required to abstain from exercising its jurisdiction. Pp. 236-239. (a) Abstention under Railroad Comm’n v. Pullman Co., 312 U. S. 496, is unnecessary. Pullman abstention is limited to uncertain questions of state law, and here there is no uncertain question of state law, since the Act unambiguously provides that the power to condemn is “for a public use and purpose.” Thus, the question, uncomplicated by ambiguous language, is whether the Act on its face is unconstitutional. Pp. 236-237. (b) Nor is abstention required under Younger v. Harris, 401 U. S. 37. Younger abstention is required only when state-court proceedings are initiated before any proceedings of substance on the merits have occurred in federal court. Here, state judicial proceedings had not been initiated at the time proceedings of substance took place in the District Court, the District Court having issued a preliminary injunction before HHA filed its first state eminent domain suit in state court. And the fact that HHA’s administrative proceedings occurred before the federal suit was filed did not require abstention, since the Act clearly states that those proceedings are not part of, or are not themselves, a judicial proceeding. Pp. 237-239. 2. The Act does not violate the “public use” requirement of the Fifth Amendment. Pp. 239-244. (a) That requirement is coterminous with the scope of a sovereign’s police powers. This Court will not substitute its judgment for a legislature’s judgment as to what constitutes “public use” unless the use is palpably without reasonable foundation. Where the exercise of the eminent domain power is rationally related to a conceivable public purpose, a compensated taking is not prohibited by the Public Use Clause. Here, regulating oligopoly and the evils associated with it is a classic exercise of a State’s police powers, and redistribution of fees simple to reduce such evils is a rational exercise of the eminent domain power. Pp. 239-243. (b) The mere fact that property taken outright by eminent domain is transferred in the first instance to private beneficiaries does not condemn that taking as having only a private purpose. Government does not itself have to use property to legitimate the taking; it is only the taking’s purpose, and not its mechanics, that must pass scrutiny under HAWAII HOUSING AUTHORITY v. MIDKIFF 231 229 Opinion of the Court the Public Use Clause. And the fact that a state legislature, and not Congress, made the public use determination does not mean that judicial deference is less appropriate. Pp. 243-244. 702 F. 2d 788, reversed and remanded. O’Connor, J., delivered the opinion of the Court, in which all other Members joined, except Marshall, J., who took no part in the consideration or decision of the cases. Laurence H. Tribe, Special Deputy Attorney General of Hawaii, argued the cause for appellants. With him on the briefs for appellants in Nos. 83-141 and 83-283 were Kathleen M. Sullivan and David Rosenberg, Special Deputy Attorneys General, Tany S. Hong, Attorney General, Michael A. Lilly, First Deputy Attorney General, Dennis E. W. O’Connor, James H. Case, and A. Bernard Bays. Richard J. Archer and Corey Y. S. Park filed briefs for appellants in No. 83-236. Clinton R. Ashford argued the cause for appellees. With him on the brief were E. Barrett Prettyman, Jr., B. Evan Bayh III, Rosemary T. Fazio, G. Richard Morry, and Earl T. Sato A Justice O’Connor delivered the opinion of the Court. The Fifth Amendment of the United States Constitution provides, in pertinent part, that “private property [shall not] be taken for public use, without just compensation.” These cases present the question whether the Public Use Clause of that Amendment, made applicable to the States through the Fourteenth Amendment, prohibits the State of Hawaii from taking, with just compensation, title in real property from tBriefs of amici curiae urging affirmance were filed for the Office of Hawaiian Affairs by H. K. Bruss Keppeler; for the Pacific Legal Foundation by Ronald A. Zumbrun and Harold J. Hughes; and for the Queen Liliuo-kalani Trust et al. by Daniel H. Case. William A. Dobrovir and Joseph D. Gebhardt filed a brief for the Hou Hawaiians et al. as amici curiae. 232 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. lessors and transferring it to lessees in order to reduce the concentration of ownership of fees simple in the State. We conclude that it does not. I A The Hawaiian Islands were originally settled by Polynesian immigrants from the western Pacific. These settlers developed an economy around a feudal land tenure system in which one island high chief, the ali’i nui, controlled the land and assigned it for development to certain subchiefs. The subchiefs would then reassign the land to other lower ranking chiefs, who would administer the land and govern the farmers and other tenants working it. All land was held at the will of the ali’i nui and eventually had to be returned to his trust. There was no private ownership of land. See generally Brief for Office of Hawaiian Affairs as Amicus Curiae 3-5. Beginning in the early 1800’s, Hawaiian leaders and American settlers repeatedly attempted to divide the lands of the kingdom among the crown, the chiefs, and the common people. These efforts proved largely unsuccessful, however, and the land remained in the hands of a few. In the mid-1960’s, after extensive hearings, the Hawaii Legislature discovered that, while the State and Federal Governments owned almost 49% of the State’s land, another 47% was in the hands of only 72 private landowners. See Brief for the Hou Hawaiians and Maui Loa, Chief of the Hou Hawaiians, as Amici Curiae 32. The legislature further found that 18 landholders, with tracts of 21,000 acres or more, owned more than 40% of this land and that on Oahu, the most urbanized of the islands, 22 landowners owned 72.5% of the fee simple titles. Id., at 32-33. The legislature concluded that concentrated land ownership was responsible for skewing the State’s residential fee simple market, inflating land prices, and injuring the public tranquility and welfare. HAWAII HOUSING AUTHORITY v. MIDKIFF 233 229 Opinion of the Court To redress these problems, the legislature decided to compel the large landowners to break up their estates. The legislature considered requiring large landowners to sell lands which they were leasing to homeowners. However, the landowners strongly resisted this scheme, pointing out the significant federal tax liabilities they would incur. Indeed, the landowners claimed that the federal tax laws were the primary reason they previously had chosen to lease, and not sell, their lands. Therefore, to accommodate the needs of both lessors and lessees, the Hawaii Legislature enacted the Land Reform Act of 1967 (Act), Haw. Rev. Stat., ch. 516, which created a mechanism for condemning residential tracts and for transferring ownership of the condemned fees simple to existing lessees. By condemning the land in question, the Hawaii Legislature intended to make the land sales involuntary, thereby making the federal tax consequences less severe while still facilitating the redistribution of fees simple. See Brief for Appellants in Nos. 83-141 and 83-283, pp. 3-4, and nn. 6-8. Under the Act’s condemnation scheme, tenants living on single-family residential lots within developmental tracts at least five acres in size are entitled to ask the Hawaii Housing Authority (HHA) to condemn the property on which they live. Haw. Rev. Stat. §§ 516-1(2), (11), 516-22 (1977). When 25 eligible tenants,1 or tenants on half the lots in the tract, whichever is less, file appropriate applications, the Act authorizes HHA to hold a public hearing to determine whether acquisition by the State of all or part of the tract will “effectuate the public purposes” of the Act. §516-22. If HHA finds that these public purposes will be served, it is author 1 An eligible tenant is one who, among other things, owns a house on the lot, has a bona fide intent to live on the lot or be a resident of the State, shows proof of ability to pay for a fee interest in it, and does not own residential land elsewhere nearby. Haw. Rev. Stat. §§516-33(3), (4), (7) (1977). 234 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. ized to designate some or all of the lots in the tract for acquisition. It then acquires, at prices set either by condemnation trial or by negotiation between lessors and lessees,2 the former fee owners’ full “right, title, and interest” in the land. §516-25. After compensation has been set, HHA may sell the land titles to tenants who have applied for fee simple ownership. HHA is authorized to lend these tenants up to 90% of the purchase price, and it may condition final transfer on a right of first refusal for the first 10 years following sale. §§ 516-30, 516-34, 516-35. If HHA does not sell the lot to the tenant residing there, it may lease the lot or sell it to someone else, provided that public notice has been given. §516-28. However, HHA may not sell to any one purchaser, or lease to any one tenant, more than one lot, and it may not operate for profit. §§ 516-28, 516-32. In practice, funds to satisfy the condemnation awards have been supplied entirely by lessees. See App. 164. While the Act authorizes HHA to issue bonds and appropriate funds for acquisition, no bonds have issued and HHA has not supplied any funds for condemned lots. See ibid. B In April 1977, HHA held a public hearing concerning the proposed acquisition of some of appellees’ lands. HHA made the statutorily required finding that acquisition of appellees’ lands would effectuate the public purposes of the Act. Then, in October 1978, it directed appellees to negotiate with certain lessees concerning the sale of the designated properties. Those negotiations failed, and HHA subsequently ordered appellees to submit to compulsory arbitration. Rather than comply with the compulsory arbitration order, appellees filed suit, in February 1979, in United States Dis- 2 See § 516-56 (Supp. 1983). In either case, compensation must equal the fair market value of the owner’s leased fee interest. § 516-1(14). The adequacy of compensation is not before us. HAWAII HOUSING AUTHORITY v. MIDKIFF 235 229 Opinion of the Court trict Court, asking that the Act be declared unconstitutional and that its enforcement be enjoined. The District Court temporarily restrained the State from proceeding against appellees’ estates. Three months later, while declaring the compulsory arbitration and compensation formulae provisions of the Act unconstitutional,3 the District Court refused preliminarily to enjoin appellants from conducting the statutory designation and condemnation proceedings. Finally, in December 1979, it granted partial summary judgment to appellants, holding the remaining portion of the Act constitutional under the Public Use Clause. See 483 F. Supp. 62 (Haw. 1979). The District Court found that the Act’s goals were within the bounds of the State’s police powers and that the means the legislature had chosen to serve those goals were not arbitrary, capricious, or selected in bad faith. The Court of Appeals for the Ninth Circuit reversed. 702 F. 2d 788 (1983). First, the Court of Appeals decided that the District Court had permissibly chosen not to abstain from the exercise of its jurisdiction. Then, the Court of Appeals determined that the Act could not pass the requisite judicial scrutiny of the Public Use Clause. It found that the transfers contemplated by the Act were unlike those of takings previously held to constitute “public uses” by this Court. The court further determined that the public purposes offered by the Hawaii Legislature were not deserving of judicial deference. The court concluded that the Act was simply “a naked attempt on the part of the state of Hawaii to take the private property of A and transfer it to B solely for B’s private use and benefit.” Id., at 798. One judge dissented. 3 As originally enacted, lessor and lessee had to commence compulsory arbitration if they could not agree on a price for the fee simple title. Statutory formulae were provided for the determination of compensation. The District Court declared both the compulsory arbitration provision and the compensation formulae unconstitutional. No appeal was taken from these rulings, and the Hawaii Legislature subsequently amended the statute to provide only for mandatory negotiation and for advisory compensation formulae. These issues are not before us. 236 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. On applications of HHA and certain private appellants who had intervened below, this Court noted probable jurisdiction. 464 U. S. 932 (1983). We now reverse. II We begin with the question whether the District Court abused its discretion in not abstaining from the exercise of its jurisdiction. The appellants have suggested as one alternative that perhaps abstention was required under the standards announced in Railroad Comm’n v. Pullman Co., 312 U. S. 496 (1941), and Younger n. Harris, 401 U. S. 37 (1971). We do not believe that abstention was required. A In Railroad Comm’n n. Pullman Co., supra, this Court held that federal courts should abstain from decision when difficult and unsettled questions of state law must be resolved before a substantial federal constitutional question can be decided. By abstaining in such cases, federal courts will avoid both unnecessary adjudication of federal questions and “needless friction with state policies . . . Id., at 500. However, federal courts need not abstain on Pullman grounds when a state statute is not “fairly subject to an interpretation which will render unnecessary” adjudication of the federal constitutional question. See Harman v. Forssenius, 380 U. S. 528, 535 (1965). Pullman abstention is limited to uncertain questions of state law because “[a]bstention from the exercise of federal jurisdiction is the exception, not the rule.” Colorado River Water Conservation Dist. n. United States, 424 U. S. 800, 813 (1976). In these cases, there is no uncertain question of state law. The Act unambiguously provides that “[t]he use of the power ... to condemn . . . is for a public use and purpose.” Haw. Rev. Stat. § 516-83(a)(12) (1977); see also §§516-83(a)(10), (11), (13). There is no other provision of the Act—or, for that matter, of Hawaii law—which would suggest that HAWAII HOUSING AUTHORITY v. MIDKIFF 237 229 Opinion of the Court § 516-83(a)(12) does not mean exactly what it says. Since “the naked question, uncomplicated by [ambiguous language], is whether the Act on its face is unconstitutional,” Wisconsin v. Constantineau, 400 U. S. 433, 439 (1971), abstention from federal jurisdiction is not required. The dissenting judge in the Court of Appeals suggested that, perhaps, the state courts could make resolution of the federal constitutional questions unnecessary by their construction of the Act. See 702 F. 2d, at 811-812. In the abstract, of course, such possibilities always exist. But the relevant inquiry is not whether there is a bare, though unlikely, possibility that state courts might render adjudication of the federal question unnecessary. Rather, “[w]e have frequently emphasized that abstention is not to be ordered unless the statute is of an uncertain nature, and is obviously susceptible of a limiting construction.” Zwickler v. Koota, 389 U. S. 241, 251, and n. 14 (1967). These statutes are not of an uncertain nature and have no reasonable limiting construction. Therefore, Pullman abstention is unnecessary.4 B The dissenting judge also suggested that abstention was required under the standards articulated in Younger v. Harris, supra. Under Younger-abstention doctrine, interests of comity and federalism counsel federal courts to abstain from jurisdiction whenever federal claims have been or could be presented in ongoing state judicial proceedings that concern 4 The dissenting judge’s suggestion that Pullman abstention was required because interpretation of the State Constitution may have obviated resolution of the federal constitutional question is equally faulty. Hawaii’s Constitution has only a parallel requirement that a taking be for a public use. See Haw. Const., Art. I, §20. The Court has previously determined that abstention is not required for interpretation of parallel state constitutional provisions. See Examining Board v. Flores de Otero, 426 U. S. 572, 598 (1976); see also Wisconsin v. Constantineau, 400 U. S. 433 (1971). 238 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. important state interests. See Middlesex Ethics Committee v. Garden State Bar Assn., 457 U. S. 423, 432-437 (1982). Younger abstention is required, however, only when state court proceedings are initiated “before any proceedings of substance on the merits have taken place in the federal court.” Hicks v. Miranda, 422 U. S. 332, 349 (1975). In other cases, federal courts must normally fulfill their duty to adjudicate federal questions properly brought before them. In these cases, state judicial proceedings had not been initiated at the time proceedings of substance took place in federal court. Appellees filed their federal court complaint in February 1979, asking for temporary and permanent relief. The District Court temporarily restrained HHA from proceeding against appellees’ estates. At that time, no state judicial proceedings were in process. Indeed, in June 1979, when the District Court granted, in part, appellees’ motion for a preliminary injunction, state court proceedings still had not been initiated. Rather, HHA filed its first eminent domain lawsuit after the parties had begun filing motions for summary judgment in the District Court—in September 1979. Whether issuance of the February temporary restraining order was a substantial federal court action or not, issuance of the June preliminary injunction certainly was. See Doran v. Salem Inn, Inc., 422 U. S. 922, 929-931 (1975). A federal court action in which a preliminary injunction is granted has proceeded well beyond the “embryonic stage,” id., at 929, and considerations of economy, equity, and federalism counsel against Younger abstention at that point. The only extant proceedings at the state level prior to the September 1979 eminent domain lawsuit in state court were HHA’s administrative hearings. But the Act clearly states that these administrative proceedings are not part of, and are not themselves, a judicial proceeding, for “mandatory arbitration shall be in advance of and shall not constitute any part of any action in condemnation or eminent domain.” Haw. Rev. Stat. § 516-51(b) (1976). Since Younger is not a HAWAII HOUSING AUTHORITY v. MIDKIFF 239 229 Opinion of the Court bar to federal court action when state judicial proceedings have not themselves commenced, see Middlesex County Ethics Committee v. Garden State Bar Assn., supra, at 433; Fair Assessment in Real Estate Assn., Inc. v. McNary, 454 U. S. 100, 112-113 (1981), abstention for HHA’s administrative proceedings was not required. Ill The majority of the Court of Appeals next determined that the Act violates the “public use” requirement of the Fifth and Fourteenth Amendments. On this argument, however, we find ourselves in agreement with the dissenting judge in the Court of Appeals. A The starting point for our analysis of the Act’s constitutionality is the Court’s decision in Berman v. Parker, 348 U. S. 26 (1954). In Berman, the Court held constitutional the District of Columbia Redevelopment Act of 1945. That Act provided both for the comprehensive use of the eminent domain power to redevelop slum areas and for the possible sale or lease of the condemned lands to private interests. In discussing whether the takings authorized by that Act were for a “public use,” id., at 31, the Court stated: “We deal, in other words, with what traditionally has been known as the police power. An attempt to define its reach or trace its outer limits is fruitless, for each case must turn on its own facts. The definition is essentially the product of legislative determinations addressed to the purposes of government, purposes neither abstractly nor historically capable of complete definition. Subject to specific constitutional limitations, when the legislature has spoken, the public interest has been declared in terms well-nigh conclusive. In such cases the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation, whether it 240 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. be Congress legislating concerning the District of Columbia ... or the States legislating concerning local affairs. . . . This principle admits of no exception merely because the power of eminent domain is involved. . . .” Id., at 32 (citations omitted). The Court explicitly recognized the breadth of the principle it was announcing, noting: “Once the object is within the authority of Congress, the right to realize it through the exercise of eminent domain is clear. For the power of eminent domain is merely the means to the end. . . . Once the object is within the authority of Congress, the means by which it will be attained is also for Congress to determine. Here one of the means chosen is the use of private enterprise for redevelopment of the area. Appellants argue that this makes the project a taking from one businessman for the benefit of another businessman. But the means of executing the project are for Congress and Congress alone to determine, once the public purpose has been established.” Id., at 33. The “public use” requirement is thus coterminous with the scope of a sovereign’s police powers. There is, of course, a role for courts to play in reviewing a legislature’s judgment of what constitutes a public use, even when the eminent domain power is equated with the police power. But the Court in Berman made clear that it is “an extremely narrow” one. Id., at 32. The Court in Berman cited with approval the Court’s decision in Old Dominion Co. v. United States, 269 U. S. 55, 66 (1925), which held that deference to the legislature’s “public use” determination is required “until it is shown to involve an impossibility.” The Berman Court also cited to United States ex rel. TVA v. Welch, 327 U. S. 546, 552 (1946), which emphasized that “[a]ny departure from this judicial restraint would result in courts deciding on what is and is not a governmental function and in their invalidating legislation on the basis of their view HAWAII HOUSING AUTHORITY v. MIDKIFF 241 229 Opinion of the Court on that question at the moment of decision, a practice which has proved impracticable in other fields.” In short, the Court has made clear that it will not substitute its judgment for a legislature’s judgment as to what constitutes a public use “unless the use be palpably without reasonable foundation.” United States v. Gettysburg Electric R. Co., 160 U. S. 668, 680 (1896). To be sure, the Court’s cases have repeatedly stated that “one person’s property may not be taken for the benefit of another private person without a justifying public purpose, even though compensation be paid.” Thompson v. Consolidated Gas Corp., 300 U. S. 55, 80 (1937). See, e. g., Cincinnati v. Vester, 281 U. S. 439, 447 (1930); Madisonville Traction Co. v. St. Bernard Mining Co., 196 U. S. 239, 251-252 (1905); Fallbrook Irrigation District v. Bradley, 164 U. S. 112, 159 (1896). Thus, in Missouri Pacific R. Co. v. Nebraska, 164 U. S. 403 (1896), where the “order in question was not, and was not claimed to be, ... a taking of private property for a public use under the right of eminent domain,” id., at 416 (emphasis added), the Court invalidated a compensated taking of property for lack of a justifying public purpose. But where the exercise of the eminent domain power is rationally related to a conceivable public purpose, the Court has never held a compensated taking to be proscribed by the Public Use Clause. See Berman n. Parker, supra; Rindge Co. v. Los Angeles, 262 U. S. 700 (1923); Block v. Hirsh, 256 U. S. 135 (1921); cf. Thompson v. Consolidated Gas Corp., supra (invalidating an uncompensated taking). On this basis, we have no trouble concluding that the Hawaii Act is constitutional. The people of Hawaii have attempted, much as the settlers of the original 13 Colonies did,5 to reduce the perceived social and economic evils of a 6 After the American Revolution, the colonists in several States took steps to eradicate the feudal incidents with which large proprietors had encumbered land in the Colonies. See, e. g., Act of May 1779, 10 Henning’s Statutes At Large 64, ch. 13, § 6 (1822) (Virginia statute); Divesting Act of 242 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. land oligopoly traceable to their monarchs. The land oligopoly has, according to the Hawaii Legislature, created artificial deterrents to the normal functioning of the State’s residential land market and forced thousands of individual homeowners to lease, rather than buy, the land underneath their homes. Regulating oligopoly and the evils associated with it is a classic exercise of a State’s police powers. See Exxon Corp. v. Governor of Maryland, 437 U. S. 117 (1978); Block v. Hirsh, supra; see also People of Puerto Rico v. Eastern Sugar Associates, 156 F. 2d 316 (CAI), cert, denied, 329 U. S. 772 (1946). We cannot disapprove of Hawaii’s exercise of this power. Nor can we condemn as irrational the Act’s approach to correcting the land oligopoly problem. The Act presumes that when a sufficiently large number of persons declare that they are willing but unable to buy lots at fair prices the land market is malfunctioning. When such a malfunction is signalled, the Act authorizes HHA to condemn lots in the relevant tract. The Act limits the number of lots any one tenant can purchase and authorizes HHA to use public funds to ensure that the market dilution goals will be achieved. This is a comprehensive and rational approach to identifying and correcting market failure. Of course, this Act, like any other, may not be successful in achieving its intended goals. But “whether in fact the provision will accomplish its objectives is not the question: the [constitutional requirement] is satisfied if. . . the . . . [state] Legislature rationally could have believed that the [Act] would promote its objective.” Western & Southern Life Ins. Co. v. State Bd. of Equalization, 451 U. S. 648, 671-672 (1981); see also Minnesota v. Clover Leaf Creamery Co., 449 U. S. 456, 466 (1981); Vance v. Bradley, 440 U. S. 93, 112 (1979). When the legislature’s purpose is legitimate and its 1779, 1775-1781 Pa. Acts 258, ch. 139 (1782) (Pennsylvania statute). Courts have never doubted that such statutes served a public purpose. See, e. g., Wilson v. Iseminger, 185 U. S. 55, 60-61 (1902); Stewart v. Gorier, 70 Md. 242, 244-245, 16 A. 644, 645 (1889). HAWAII HOUSING AUTHORITY v. MIDKIFF 243 229 Opinion of the Court means are not irrational, our cases make clear that empirical debates over the wisdom of takings—no less than debates over the wisdom of other kinds of socioeconomic legislation— are not to be carried out in the federal courts. Redistribution of fees simple to correct deficiencies in the market determined by the state legislature to be attributable to land oligopoly is a rational exercise of the eminent domain power. Therefore, the Hawaii statute must pass the scrutiny of the Public Use Clause.6 B The Court of Appeals read our cases to stand for a much narrower proposition. First, it read our “public use” cases, especially Berman, as requiring that government possess and use property at some point during a taking. Since Hawaiian lessees retain possession of the property for private use throughout the condemnation process, the court found that the Act exacted takings for private use. 702 F. 2d, at 796-797. Second, it determined that these cases involved only “the review of . . . congressional determination[s] that there was a public use, not the review of. . . state legislative determination[s].” Id., at 798 (emphasis in original). Because state legislative determinations are involved in the instant cases, the Court of Appeals decided that more rigorous judicial scrutiny of the public use determinations was appropriate. The court concluded that the Hawaii Legislature’s professed purposes were mere “statutory rationalizations.” Ibid. We disagree with the Court of Appeals’ analysis. The mere fact that property taken outright by eminent domain is transferred in the first instance to private beneficiaries does not condemn that taking as having only a private 6 We similarly find no merit in appellees’ Due Process and Contract Clause arguments. The argument that due process prohibits allowing lessees to initiate the taking process was essentially rejected by this Court in New Motor Vehicle Board v. Fox Co., 439 U. S. 96, 108-109 (1978). Similarly, the Contract Clause has never been thought to protect against the exercise of the power of eminent domain. See United States Trust Co. v. New Jersey, 431 U. S. 1, 19, and n. 16 (1977). 244 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. purpose. The Court long ago rejected any literal requirement that condemned property be put into use for the general public. “It is not essential that the entire community, nor even any considerable portion, . . . directly enjoy or participate in any improvement in order [for it] to constitute a public use.” Rindge Co. v. Los Angeles, 262 U. S., at 707. “[W]hat in its immediate aspect [is] only a private transaction may ... be raised by its class or character to a public affair.” Block v. Hirsh, 256 U. S., at 155. As the unique way titles were held in Hawaii skewed the land market, exercise of the power of eminent domain was justified. The Act advances its purposes without the State’s taking actual possession of the land. In such cases, government does not itself have to use property to legitimate the taking; it is only the taking’s purpose, and not its mechanics, that must pass scrutiny under the Public Use Clause. Similarly, the fact that a state legislature, and not the Congress, made the public use determination does not mean that judicial deference is less appropriate.7 Judicial deference is required because, in our system of government, legislatures are better able to assess what public purposes should be advanced by an exercise of the taking power. State legislatures are as capable as Congress of making such determinations within their respective spheres of authority. See Berman n. Parker, 348 U. S., at 32. Thus, if a legislature, state or federal, determines there are substantial reasons for an exercise of the taking power, courts must defer to its determination that the taking will serve a public use. 7 It is worth noting that the Fourteenth Amendment does not itself contain an independent “public use” requirement. Rather, that requirement is made binding on the States only by incorporation of the Fifth Amendment’s Eminent Domain Clause through the Fourteenth Amendment’s Due Process Clause. See Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226 (1897). It would be ironic to find that state legislation is subject to greater scrutiny under the incorporated “public use” requirement than is congressional legislation under the express mandate of the Fifth Amendment. HAWAII HOUSING AUTHORITY v. MIDKIFF 245 229 Opinion of the Court IV The State of Hawaii has never denied that the Constitution forbids even a compensated taking of property when executed for no reason other than to confer a private benefit on a particular private party. A purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government and would thus be void. But no purely private taking is involved in these cases. The Hawaii Legislature enacted its Land Reform Act not to benefit a particular class of identifiable individuals but to attack certain perceived evils of concentrated property ownership in Hawaii—a legitimate public purpose. Use of the condemnation power to achieve this purpose is not irrational. Since we assume for purposes of these appeals that the weighty demand of just compensation has been met, the requirements of the Fifth and Fourteenth Amendments have been satisfied. Accordingly, we reverse the judgment of the Court of Appeals, and remand these cases for further proceedings in conformity with this opinion. It is so ordered. Justice Marshall took no part in the consideration or decision of these cases. 246 OCTOBER TERM, 1983 Syllabus 467 U. S. NEW YORK v. UPLINGER ET AL. CERTIORARI TO THE COURT OF APPEALS OF NEW YORK No. 82-1724. Argued January 18, 1984—Decided May 30, 1984 Respondents, charged with violating a New York statute prohibiting loitering “in a public place for the purpose of engaging, or soliciting another person to engage, in deviate sexual intercourse or other sexual behavior of a deviate nature,” challenged its constitutionality, and the New York Court of Appeals sustained their claim. This Court granted certiorari. Held: Where (1) the precise federal constitutional grounds relied upon by the Court of Appeals is uncertain; (2) whatever the constitutional basis of the lower court’s decision, it was premised on its earlier decision in another case so that a meaningful evaluation of the decision below would entail consideration of the question decided in the other case; and (3) petitioner does not challenge the decision in the other case, the instant case provides an inappropriate vehicle for resolving the constitutional issues raised. Accordingly, the writ of certiorari is dismissed as im-providently granted. Certiorari dismissed. Reported below: 58 N. Y. 2d 936, 447 N. E. 2d 62. Richard J. Arcara argued the cause for petitioner. With him on the briefs were John J. DeFranks and Louis A. Haremski. William H. Gardner argued the cause for respondents. With him on the brief for respondent Uplinger was Thomas F. Coleman. Rose H. Sconiers and Joseph B. Mistrett filed a brief for respondent Butler.* *Briefs of amici curiae urging affirmance were filed for the American Association for Personal Privacy et al. by Melvin L. Wulf and David A. J. Richards; for the American Civil Liberties Union et al. by Steven R. Shapiro, Burt Neuborne, and Charles S. Sims; for the American Psychological Association et al. by Margaret Farrell Ewing, Bruce J. Ennis, and Donald N. Bersoff; for the Committee on Sex and Law of the Association of the Bar of the City of New York et al. by Mark H. Leeds, Michael A. Bamberger, John H. Doyle III, and Edward M. Shaw; and for the Lambda Legal Defense and Education Fund, Inc., by Mary C. Dunlap, Abby R. Rubenfeld, and Nan D. Hunter. Briefs of amici curiae were filed for the Attorney General of the State of New York by Robert Abrams, Attorney General, pro se, and Rosemarie NEW YORK v. UPLINGER 247 246 Per Curiam Per Curiam. We granted certiorari, 464 U. S. 812 (1983), to review a decision of the New York Court of Appeals concerning N. Y. Penal Law §240.35(3) (McKinney 1980), which prohibits loitering “in a public place for the purpose of engaging, or soliciting another person to engage, in deviate sexual intercourse or other sexual behavior of a deviate nature.” Respondents, charged with violating the statute, challenged its constitutionality and the Court of Appeals sustained their claim. 58 N. Y. 2d 936, 447 N. E. 2d 62 (1983). The court concluded that § 240.35(3) is “a companion statute to the consensual sodomy statute . . . which criminalized acts of deviate sexual intercourse between consenting adults” and noted that it had previously held the latter statute unconstitutional in People v. Onofre, 51 N. Y. 2d 476, 415 N. E. 2d 936 (1980), which we declined to review, see 451 U. S. 987 (1981). 58 N. Y. 2d, at 937-938, 447 N. E. 2d, at 62-63. Construing the loitering statute as intended “to punish conduct anticipatory to the act of consensual sodomy,” the Court of Appeals reasoned that “[i]nasmuch as the conduct ultimately contemplated by the loitering statute may not be deemed criminal, we perceive no basis upon which the State may continue to punish loitering for that purpose.” Id., at 938, 447 N. E. 2d, at 63. Petitioner challenges the decision of the Court of Appeals on the ground that the loitering statute is a valid exercise of the State’s power to control public order.1 Respondents, on ■j--------- Rhodes, Lawrence S. Kahn, and Jane Levine, Assistant Attorneys General; for the Center for Constitutional Rights et al. by Rhonda Copeion and Anne E. Simon; and for the National Association of Business Councils et al. by Laurence R. Sperber and Jay M. Kohorn. ’Petitioner, the State of New York, is represented in this Court by the District Attorney for Erie County, N. Y., the prosecutor who brought the criminal charges against respondents. After certiorari was granted, however, the Attorney General of the State of New York filed a brief as amicus curiae, urging us to conclude that the loitering statute as applied in this case violates respondents’ federal constitutional rights to freedom of 248 OCTOBER TERM, 1983 Per Curiam 467 U. S. the other hand, defend the decision by arguing that the statute is unconstitutionally vague and overbroad on its face and that, as applied, it violates their First Amendment, equal protection, and due process rights. We decline to address these arguments, however, because examination of the case, after full briefing and oral argument, has convinced us that the writ of certiorari was improvidently granted. See The Monrosa v. Carbon Black Export, Inc., 359 U. S. 180, 184 (1959). As the diverse arguments presented in the briefs have demonstrated, the opinion of the Court of Appeals is fairly subject to varying interpretations, leaving us uncertain as to the precise federal constitutional issue the court decided.2 Moreover, whatever the constitutional basis of the Court of speech and privacy but suggesting that the court below erred in striking down the statute on its face. The allocation of authority among state officers to represent the State before this Court is, of course, wholly a matter of state concern. As our Rule 36.4 indicates, however, in addressing the constitutionality of a statute with statewide application we consider highly relevant the views of the State’s chief law enforcement official. The fundamental conflict in the positions taken by petitioner and the New York Attorney General, a circumstance which was “not manifest or fully apprehended at the time certiorari was granted,” Ferguson v. Moore-McCormack Lines, 352 U. S. 521, 559 (1957) (Harlan, J., concurring and dissenting), provides a strong additional reason for our conclusion that the grant of certiorari was improvident. See The Monrosa v. Carbon Black Export, Inc., 359 U. S. 180, 184 (1959). 2 Under one fair reading of the opinion below, we may not even have jurisdiction to review the Court of Appeals’ decision. See Dorchy n. Kansas, 264 U. S. 286, 290 (1924). The New York court determined, as a matter of state law, that the statute prohibits speech, whether harassing or not, anticipatory to consensual sodomy. Accordingly, the court’s holding might be based on a conclusion that as a matter of state law, the statute at issue here was intended only to provide an additional means of enforcing the statute struck down in Onofre and therefore was not severable from that statute. See 58 N. Y. 2d, at 937-938, 447 N. E. 2d, at 62-63 (“[I]t is apparent from the wording of this statute that it was aimed at proscribing overtures, not necessarily bothersome to the recipient, leading to what was, at the time the law was enacted, an illegal act”). NEW YORK v. UPLINGER 249 246 Stevens, J., concurring Appeals’ decision, it was clearly premised on the court’s earlier decision in People v. Onofre, supra, and for that reason a meaningful evaluation of the decision below would entail consideration of the questions decided in that case. Petitioner does not, however, challenge the decision of the New York Court of Appeals in that case. See Brief for Petitioner 2. Cf. Pet. for Cert. 6, n. 1. Under these circumstances, we are persuaded that this case provides an inappropriate vehicle for resolving the important constitutional issues raised by the parties. We therefore dismiss the writ of certiorari as improvidently granted. It is so ordered. Justice Stevens, concurring. Although the origins of the Rule of Four are somewhat obscure,1 its administration during the past 60 years has undergone a number of changes.2 Even though our decision today makes no change in the Rule, I regard it as sufficiently significant to warrant these additional comments. I first note that I agree with the reasons set forth in the per curiam opinion for not deciding this case. I would add (1) that the major reasons were apparent when the certiorari petition was filed, and (2) that our jurisdiction over this case is problematic at best because the most straightforward interpretation of the New York Court of Appeals’ opinion is that the statutory provision at issue in this case is not severable, as a matter of state law, from the provision invalidated in People v. Onofre, 51 N. Y. 2d 476, 415 N. E. 2d 936 (1980), cert, denied, 451 U. S. 987 (1981). The Court, quite correctly in my opinion, therefore declines to address the merits. Four Members of the Court believe, however, that the merits “should be addressed.” Post, at 252. They do not, 1 See Leiman, The Rule of Four, 57 Colum. L. Rev. 975, 981-982 (1957). 2 See Stevens, The Life Span of a Judge-Made Rule, 58 N. Y. U. L. Rev. 1, 11-14 (1983). 250 OCTOBER TERM, 1983 Stevens, J., concurring 467 U. S. however, address the merits themselves. Cf. Colorado v. Nunez, 465 U. S. 324 (1984) (concurring opinion). Nor do they attempt to refute the sound reasons offered by the majority for dismissing the writ as improvidently granted. As long as we adhere to the Rule of Four, four Justices have the power to require that a case be briefed, argued, and considered at a postargument conference. Why, then, should they not also have the power to command that its merits be decided by the Court? The difference in the character of the decision to hear a case and the decision to decide it justifies a difference in the way the decision should be made. As long as we act prudently in selecting cases for review,3 there is relatively little to be lost, and a great deal to be gained, by permitting four Justices who are convinced that a case should be heard to have it placed on the calendar for argument. It might be suggested that the case must be decided unless there has been an intervening development that justifies a dismissal. See generally Rice v. Sioux City Cemetery, 349 U. S. 70 (1955). I am now persuaded, however, that there is always an important intervening development that may be decisive. The Members of the Court have always considered a case more carefully after full briefing and argument on the merits than they could at the time of the certiorari conference, when almost 100 petitions must be considered each week.4 Nevertheless, once a case has been briefed, argued, and studied in chambers, sound principles of judicial economy normally 3 We have granted review in approximately 50 fewer cases thus far this Term than we had at the corresponding point in the October 1981 Term. 4 A particularly dramatic example of the contrast between the quality of decisionmaking after argument as compared with that prior to studying the merits is provided by the contrast between the virtually unanimous decision to deny the application for a stay in Palmore v. Sidoti, 460 U. S. 1018 (1983), and the unanimous decision to reverse the decision below on the merits, 466 U. S. 429 (1984). NEW YORK v. UPLINGER 251 246 Stevens, J., concurring outweigh most reasons advanced for dismissing a case. Indeed, in many cases, the majority may remain convinced that the case does not present a question of general significance warranting this Court’s review, but nevertheless proceed to decide the case on the merits because there is no strong countervailing reason to dismiss after the large investment of resources by the parties and the Court. A decision on the merits does, of course, have serious consequences, particularly when a constitutional issue is raised, and most especially when the constitutional issue presents questions of first impression. The decision to decide a constitutional question may be the most momentous decision that can be made in a case. Fundamental principles of constitutional adjudication counsel against premature consideration of constitutional questions and demand that such questions be presented in a context conducive to the most searching analysis possible. See generally Ashwander v. TV A, 297 U. S. 288, 341 (1936) (Brandeis, J., concurring). The policy of judicial restraint is most salient in this Court, given its role as the ultimate expositor of the meaning of the Constitution, and “perhaps the most effective implement for making the policy effective has been the certiorari jurisdiction conferred upon this Court by Congress.” Rescue Army v. Municipal Court, 331 U. S. 549, 568 (1947). If a majority is convinced after studying the case that its posture, record, or presentation of issues makes it an unwise vehicle for exercising the “gravest and most delicate” function that this Court is called upon to perform, the Rule of Four should not reach so far as to compel the majority to decide the case. In conclusion, the Rule of Four is a valuable, though not immutable, device for deciding when a case must be argued, but its force is largely spent once the case has been heard. At that point, a more fully informed majority of the Court must decide whether some countervailing principle outweighs the interest in judicial economy in deciding the case. 252 OCTOBER TERM, 1983 467 U. S. White, J., dissenting Justice White, with whom The Chief Justice, Justice Rehnquist, and Justice O’Connor join, dissenting. As I see it, the New York statute was invalidated on federal constitutional grounds, and the merits of that decision are properly before us and should be addressed. Dismissing this case as improvidently granted is not the proper course. SCHALL v. MARTIN 253 Syllabus SCHALL, COMMISSIONER OF NEW YORK CITY DEPARTMENT OF JUVENILE JUSTICE v. MARTIN ET AL. APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 82-1248. Argued January 17, 1984—Decided June 4, 1984* Section 320.5(3)(b) of the New York Family Court Act authorizes pretrial detention of an accused juvenile delinquent based on a finding that there is a “serious risk” that the juvenile “may before the return date commit an act which if committed by an adult would constitute a crime.” Appellees, juveniles who had been detained under § 320.5(3)(b), brought a habeas corpus class action in Federal District Court, seeking a declaratory judgment that §320.5(3)(b) violates, inter alia, the Due Process Clause of the Fourteenth Amendment. The District Court struck down the statute as permitting detention without due process and ordered the release of all class members. The Court of Appeals affirmed, holding that since the vast majority of juveniles detained under the statute either have their cases dismissed before an adjudication of delinquency or are released after adjudication, the statute is administered, not for preventive purposes, but to impose punishment for unadjudicated criminal acts, and that therefore the statute is unconstitutional as to all juveniles. Held: Section 320.5(3)(b) is not invalid under the Due Process Clause of the Fourteenth Amendment. Pp. 263-281. (a) Preventive detention under the statute serves the legitimate state objective, held in common with every State, of protecting both the juvenile and society from the hazards of pretrial crime. That objective is compatible with the “fundamental fairness” demanded by the Due Process Clause in juvenile proceedings, and the terms and condition of confinement under §320.5(3)(b) are compatible with that objective. Pretrial detention need not be considered punishment merely because a juvenile is subsequently discharged subject to conditions or put on probation. And even when a case is terminated prior to factfinding, it does not follow that the decision to detain the juvenile pursuant to § 320.5(3) (b) amounts to a due process violation. Pp. 264-274. *Together with No. 82-1278, Abrams, Attorney General of New York v. Martin et al., also on appeal from the same court. 254 OCTOBER TERM, 1983 Syllabus 467 U. S. (b) The procedural safeguards afforded by the Family Court Act to juveniles detained under § 320.5(3)(b) prior to factfinding provide sufficient protection against erroneous and unnecessary deprivations of liberty. Notice, a hearing, and a statement of facts and reasons are given to the juvenile prior to any detention, and a formal probable-cause hearing is then held within a short time thereafter, if the factfinding hearing is not itself scheduled within three days. There is no merit to the argument that the risk of erroneous and unnecessary detention is too high despite these procedures because the standard for detention is fatally vague. From a legal point of view, there is nothing inherently unattainable about a prediction of future criminal conduct. Such a prediction is an experienced one based on a host of variables that cannot be readily codified. Moreover, the postdetention procedures—habeas corpus review, appeals, and motions for reconsideration—provide a sufficient mechanism for correcting on a case-by-case basis any erroneous detention. Pp. 274-281. 689 F. 2d 365, reversed. Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, Powell, and O’Connor, JJ., joined. Marshall, J., filed a dissenting opinion, in which Brennan and Stevens, JJ., joined, post, p. 281. Judith A. Gordon, Assistant Attorney General of New York, argued the cause for appellants in both cases. With her on the briefs for appellant in No. 82-1278 were Robert Abrams, Attorney General, pro se, Peter H. Schiff, Melvyn R. Leventhal, Deputy First Assistant Attorney General, George D. Zuckerman, Deputy Solicitor General, and Robert J. Schack, Assistant Attorney General. Frederick A. 0. Schwarz, Jr., Leonard Koerner, and Ronald E. Sternberg filed a brief for appellant in No. 82-1248. Martin Guggenheim argued the cause for appellees in both cases. With him on the brief were Burt Neuborne, Janet R. Fink, and Charles A. Hollander A tA brief of amici curiae urging reversal was filed for the Commonwealth of Pennsylvania et al. by LeRoy S. Zimmerman, Attorney General of Pennsylvania, Kathleen F. McGrath, Deputy Attorney General, and by the Attorneys General for their respective jurisdictions as follows: Charles Graddick of Alabama, Norman C. Gorsuch of Alaska, Robert K. Corbin of SCHALL v. MARTIN 255 253 Opinion of the Court Justice Rehnquist delivered the opinion of the Court. Section 320.5(3)(b) of the New York Family Court Act authorizes pretrial detention of an accused juvenile delinquent based on a finding that there is a “serious risk” that the child “may before the return date commit an act which if committed by an adult would constitute a crime.”1 Appellees brought suit on behalf of a class of all juveniles detained pur- Arizona, John K. Van De Kamp of California, Jim Smith of Florida, Tany S. Hong of Hawaii, Jim Jones of Idaho, Neil F. Hartigan of Illinois, Linley E. Pearson of Indiana, Robert T. Stephan of Kansas, William J. Guste, Jr., of Louisiana, Frank J. Kelley of Michigan, Michael T. Greeley of Montana, Paul L. Douglas of Nebraska, Gregory H. Smith of New Hampshire, Anthony J. Celebrezze, Jr., of Ohio, Dave Frohnmayer of Oregon, T. Travis Medlock of South Carolina, David L. Wilkinson of Utah, John J. Easton, Jr., of Vermont, Kenneth 0. Eikenberry of Washington, A. G. McClintock of Wyoming, and Aviata F. Faalevao of American Samoa. Briefs of amici curiae urging affirmance were filed for the American Bar Association by Wallace D. Riley, Andrew J. Shookhoff, and Steven H. Goldblatt; for the Association for Children of New Jersey by Dennis S. Brotman; for the National Juvenile Law Center by Harry F. Swanger; for the National Legal Aid and Defender Association by Michael J. Dale; for the Public Defender Service for the District of Columbia by Francis D. Carter and James H. McComas; and for the Youth Law Center et al. by Mark I. Soler, Loren M. Warboys, James R. Bell, and Robert G. Schwartz. David Crump filed a brief for the Texas District and County Attorneys Association et al. as amici curiae. 1 New York Jud. Law § 320.5 (McKinney 1983) (Family Court Act (hereinafter FC A)) provides, in relevant part: “1. At the initial appearance, the court in its discretion may release the respondent or direct his detention. “3. The court shall not direct detention unless it finds and states the facts and reasons for so finding that unless the respondent is detained; “(a) there is a substantial probability that he will not appear in court on the return date; or “(b) there is a serious risk that he may before the return date commit an act which if committed by an adult would constitute a crime.” Appellees have only challenged pretrial detention under § 320.5(3)(b). Thus, the propriety of detention to ensure that a juvenile appears in court on the return date, pursuant to § 320.5(3)(a), is not before the Court. 256 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. suant to that provision.2 The District Court struck down §320.5(3)(b) as permitting detention without due process of law and ordered the immediate release of all class members. United States ex rel. Martin v. Strasburg, 513 F. Supp. 691 (SDNY 1981). The Court of Appeals for the Second Circuit affirmed, holding the provision “unconstitutional as to all juveniles” because the statute is administered in such a way that “the detention period serves as punishment imposed without proof of guilt established according to the requisite constitutional standard.” Martin v. Strasburg, 689 F. 2d 365, 373-374 (1982). We noted probable jurisdiction, 460 U. S. 1079 (1983),3 and now reverse. We conclude that preventive detention under the FC A serves a legitimate state 2 The original challenge was to § 739(a)(ii) of the FCA, which, at the time of the commencement of this suit, governed pretrial release or detention of both alleged juvenile delinquents and persons in need of supervision. Effective July 1, 1983, a new Article 3 to the Act governs, inter alia, “all juvenile delinquency actions and proceedings commenced upon or after the effective date thereof and all appeals and other post-judgment proceedings relating or attaching thereto.” FCA §301.3(1). Article 7 now applies only to proceedings concerning persons in need of supervision. Obviously, this Court must “review the judgment below in light of the . . . statute as it now stands, not as it once did.” Hall v. Beals, 396 U. S. 45, 48 (1969). But since new Article 3 contains a preventive detention section identical to former § 739(a)(ii), see FCA §320.5(3), the appeal is not moot. Brockington n. Rhodes, 396 U. S. 41, 43 (1969). ’Although the pretrial detention of the class representatives has long since ended, see infra, at 257-261, this case is not moot for the same reason that the class action in Gerstein v. Pugh, 420 U. S. 103, 110, n. 11 (1975), was not mooted by the termination of the claims of the named plaintiffs. “Pretrial detention is by nature temporary, and it is most unlikely that any given individual could have his constitutional claim decided on appeal before he is either released or convicted. The individual could nonetheless suffer repeated deprivations, and it is certain that other persons similarly situated will be detained under the allegedly unconstitutional procedures. The claim, in short, is one that is distinctly ‘capable of repetition, yet evading review.’ ” See also People ex rel. Waybum v. Schupf, 39 N. Y. 2d 682, 686-687, 350 N. E. 2d 906, 907-908 (1976). SCHALL v. MARTIN 257 253 Opinion of the Court objective, and that the procedural protections afforded pretrial detainees by the New York statute satisfy the requirements of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. I Appellee Gregory Martin was arrested on December 13, 1977, and charged with first-degree robbery, second-degree assault, and criminal possession of a weapon based on an incident in which he, with two others, allegedly hit a youth on the head with a loaded gun and stole his jacket and sneakers. See Petitioners’ Exhibit lb. Martin had possession of the gun when he was arrested. He was 14 years old at the time and, therefore, came within the jurisdiction of New York’s Family Court.4 The incident occurred at 11:30 at night, and Martin lied to the police about where and with whom he lived. He was consequently detained overnight.5 4 In New York, a child over the age of 7 but less than 16 is not considered criminally responsible for his conduct. FCA § 301.2(1). If he commits an act that would constitute a crime if committed by an adult, he comes under the exclusive jurisdiction of the Family Court. § 302.1(1). That court is charged not with finding guilt and affixing punishment, In re Bogart, 45 Mise. 2d 1075, 259 N. Y. S. 2d 351 (1963), but rather with determining and pursuing the needs and best interests of the child insofar as those are consistent with the need for the protection of the community. FCA § 301.1. See In re Craig S., 57 App. Div. 2d 761, 394 N. Y. S. 2d 200 (1977). Juvenile proceedings are, thus, civil rather than criminal, although because of the restrictions that may be placed on a juvenile adjudged delinquent, some of the same protections afforded accused adult criminals are also applicable in this context. Cf. FCA §303.1. 6 When a juvenile is arrested, the arresting officer must immediately notify the parent or other person legally responsible for the child’s care. FCA § 305.2(3). Ordinarily, the child will be released into the custody of his parent or guardian after being issued an “appearance ticket” requiring him to meet with the probation service on a specified day. §307.1(1). See n. 9, infra. If, however, he is charged with a serious crime, one of several designated felonies, see § 301.2(8), or if his parent or guardian cannot be reached, the juvenile may be taken directly before the Family Court. § 305.2. The Family Court judge will make a preliminary deter- 258 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. A petition of delinquency was filed,6 and Martin made his “initial appearance” in Family Court on December 14th, accompanied by his grandmother.7 The Family Court Judge, citing the possession of the loaded weapon, the false address given to the police, and the lateness of the hour, as evidencing a lack of supervision, ordered Martin detained under §320.5(3)(b) (at that time § 739(a)(ii); see n. 2, supra). A probable-cause hearing was held five days later, on December 19th, and probable cause was found to exist for all the crimes charged. At the factfinding hearing held December 27-29, Martin was found guilty on the robbery and criminal possession charges. He was adjudicated a delinquent and mination as to the jurisdiction of the court, appoint a law guardian for the child, and advise the child of his or her rights, including the right to counsel and the right to remain silent. Only if, as in Martin’s case, the Family Court is not in session and special circumstances exist, such as an inability to notify the parents, will the child be taken directly by the arresting officer to a juvenile detention facility. § 305.2(4)(c). If the juvenile is so detained, he must be brought before the Family Court within 72 hours or the next day the court is in session, whichever is sooner. §307.3(4). The propriety of such detention, prior to a juvenile’s initial appearance in Family Court, is not at issue in this case. Appellees challenged only judicially ordered detention pursuant to §320.5(3)(b). 6 A delinquency petition, prepared by the “presentment agency,” originates delinquency proceedings. FCA § 310.1. The petition must contain, inter alia, a precise statement of each crime charged and factual allegations which “clearly apprise” the juvenile of the conduct which is the subject of the accusation. § 311.1. A petition is not deemed sufficient unless the allegations of the factual part of the petition, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the juvenile committed the crime or crimes charged. §311.2(2). Also, nonhearsay allegations in the petition and supporting deposition must establish, if true, every element of each crime charged and the juvenile’s commission thereof. §311.2(3). The sufficiency of a petition may be tested by filing a motion to dismiss under § 315.1. 7 The first proceeding in Family Court following the filing of the petition is known as the initial appearance even if the juvenile has already been brought before the court immediately following his arrest. FCA § 320.2. SCHALL v. MARTIN 259 253 Opinion of the Court placed on two years’ probation.8 He had been detained pursuant to §320.5(3)(b), between the initial appearance and the completion of the factfinding hearing, for a total of 15 days. Appellees Luis Rosario and Kenneth Morgan, both age 14, were also ordered detained pending their factfinding hearings. Rosario was charged with attempted first-degree robbery and second-degree assault for an incident in which he, with four others, allegedly tried to rob two men, putting a gun to the head of one of them and beating both about the head with sticks. See Petitioners’ Exhibit 2b. At the time of his initial appearance, on March 15, 1978, Rosario had another delinquency petition pending for knifing a student, and two prior petitions had been adjusted.9 Probable cause was 8 The “factfinding” is the juvenile’s analogue of a trial. As in the earlier proceedings, the juvenile has a right to counsel at this hearing. § 341.2. See In re Gault, 387 U. S. 1 (1967). Evidence may be suppressed on the same grounds as in criminal cases, FCA § 330.2, and proof of guilt, based on the record evidence, must be beyond a reasonable doubt, § 342.2. See In re Winship, 397 U. S. 358 (1970). If guilt is established, the court enters an appropriate order and schedules a dispositional hearing. § 345.1. The dispositional hearing is the final and most important proceeding in the Family Court. If the juvenile has committed a designated felony, the court must order a probation investigation and a diagnostic assessment. § 351.1. Any other material and relevant evidence may be offered by the probation agency or the juvenile. Both sides may call and cross-examine witnesses and recommend specific dispositional alternatives. §350.4. The court must find, based on a preponderance of the evidence, § 350.3(2), that the juvenile is delinquent and requires supervision, treatment, or confinement. §352.1. Otherwise, the petition is dismissed. Ibid. If the juvenile is found to be delinquent, then the court enters an order of disposition. Possible alternatives include a conditional discharge; probation for up to two years; nonsecure placement with, perhaps, a relative or the Division for Youth; transfer to the Commissioner of Mental Health; or secure placement. §§ 353.1-353.5. Unless the juvenile committed one of the designated felonies, the court must order the least restrictive available alternative consistent with the needs and best interests of the juvenile and the need for protection of the community. § 352.2(2). 9 Every accused juvenile is interviewed by a member of the staff of the Probation Department. This process is known as “probation intake. ” See 260 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. found on March 21. On April 11, Rosario was released to his father, and the case was terminated without adjustment on September 25, 1978. Kenneth Morgan was charged with attempted robbery and attempted grand larceny for an incident in which he and another boy allegedly tried to steal money from a 14-year-old girl and her brother by threatening to blow their heads off and grabbing them to search their pockets. See Petitioners’ Exhibit 3b. Morgan, like Rosario, was on release status on another petition (for robbery and criminal possession of stolen property) at the time of his initial appearance on March 27, 1978. He had been arrested four previous times, and his mother refused to come to court because he had been in trouble so often she did not want him home. A probablecause hearing was set for March 30, but was continued until April 4, when it was combined with a factfinding hearing. Morgan was found guilty of harassment and petit larceny and was ordered placed with the Department of Social Services for 18 months. He was detained a total of eight days between his initial appearance and the factfinding hearing. On December 21, 1977, while still in preventive detention pending his factfinding hearing, Gregory Martin instituted a Testimony of Mr. Benjamin (Supervisor, New York Dept, of Probation), App. 142. In the course of the interview, which lasts an average of 45 minutes, the probation officer will gather what information he can about the nature of the case, the attitudes of the parties involved, and the child’s past history and current family circumstances. Id., at 144, 153. His sources of information are the child, his parent or guardian, the arresting officer, and any records of past contacts between the child and the Family Court. On the basis of this interview, the probation officer may attempt to “adjust,” or informally resolve, the case. FCA § 308.1(2). Adjustment is a purely voluntary process in which the complaining witness agrees not to press the case further, while the juvenile is given a warning or agrees to counseling sessions or, perhaps, referral to a community agency. § 308.1 (Practice Commentary). In cases involving designated felonies or other serious crimes, adjustment is not permitted without written approval of the Family Court. §308.1(4). If a case is not informally adjusted, it is referred to the “presentment agency.” See n. 6, supra. SCHALL v. MARTIN 261 253 Opinion of the Court habeas corpus class action on behalf of “those persons who are, or during the pendency of this action will be, preventively detained pursuant to” § 320.5(3)(b) of the FC A. Rosario and Morgan were subsequently added as additional named plaintiffs. These three class representatives sought a declaratory judgment that § 320.5(3)(b) violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment. In an unpublished opinion, the District Court certified the class. App. 20-32.10 The court also held that appellees were not required to exhaust their state remedies before resorting to federal habeas because the highest state court had already rejected an identical challenge to the juvenile preventive detention statute. See People ex rel. Waybum v. Schupf, 39 N. Y. 2d 682, 350 N. E. 2d 906 (1976). Exhaustion of state remedies, therefore, would be “an exercise in futility.” App. 26. At trial, appellees offered in evidence the case histories of 34 members of the class, including the three named petitioners. Both parties presented some general statistics on the relation between pretrial detention and ultimate disposition. In addition, there was testimony concerning juvenile proceedings from a number of witnesses, including a legal aid attorney specializing in juvenile cases, a probation supervisor, a child psychologist, and a Family Court Judge. On the basis of this evidence, the District Court rejected the equal protection challenge as “insubstantial,”11 but agreed with appellees that pretrial detention under the FC A violates due process.12 10 We have never decided whether Federal Rule of Civil Procedure 23, providing for class actions, is applicable to petitions for habeas corpus relief. See Bell v. Wolfish, 441 U. S. 520, 527, n. 6 (1979); Middendorf v. Henry, 425 U. S. 25, 30 (1976). Although appellants contested the class certification in the District Court, they did not raise the issue on appeal; nor do they urge it here. Again, therefore, we have no occasion to reach the question. 11 The equal protection claim, which was neither raised on appeal nor decided by the Second Circuit, is not before us. 12 The District Court gave three reasons for this conclusion. First, under the FCA, a juvenile may be held in pretrial detention for up to five 262 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. The court ordered that “all class members in custody pursuant to Family Court Act Section [320.5(3)(b)] shall be released forthwith.” Id., at 93. The Court of Appeals affirmed. After reviewing the trial record, the court opined that “the vast majority of juveniles detained under [§ 320.5(3)(b)] either have their petitions dismissed before an adjudication of delinquency or are released after adjudication.” 689 F. 2d, at 369. The court concluded from that fact that § 320.5(3)(b) “is utilized principally, not for preventive purposes, but to impose punishment for unadjudicated criminal acts.” Id., at 372. The early release of so many of those detained contradicts any asserted need for pretrial confinement to protect the community. The court therefore concluded that §320.5(3)(b) must be declared unconstitutional as to all juveniles. Individual litigation would be a practical impossibility because the periods of detention are so short that the litigation is mooted before the merits are determined.13 days without any judicial determination of probable cause. Relying on Gerstein v. Pugh, 420 U. S., at 114, the District Court concluded that pretrial detention without a prior adjudication of probable cause is, itself, a per se violation of due process. United States ex rel. Martin v. Strasburg, 513 F. Supp. 691, 717 (SDNY 1981). Second, after a review of the pertinent scholarly literature, the court noted that “no diagnostic tools have as yet been devised which enable even the most highly trained criminologists to predict reliably which juveniles will engage in violent crime.” Id., at 708. A fortiori, the court concluded, a Family Court judge cannot make a reliable prediction based on the limited information available to him at the initial appearance. Id., at 712. Moreover, the court felt that the trial record was “replete” with examples of arbitrary and capricious detentions. Id., at 713. Finally, the court concluded that preventive detention is merely a euphemism for punishment imposed without an adjudication of guilt. The alleged purpose of the detention—to protect society from the juvenile’s criminal conduct—is indistinguishable from the purpose of post-trial detention. And given “the inability of trial judges to predict which juveniles will commit crimes,” there is no rational connection between the decision to detain and the alleged purpose, even if that purpose were legitimate. Id., at 716. 13 Judge Newman concurred separately. He was not convinced that the record supported the majority’s statistical conclusions. But he thought SCHALL v. MARTIN 263 253 Opinion of the Court II There is no doubt that the Due Process Clause is applicable in juvenile proceedings. “The problem,” we have stressed, “is to ascertain the precise impact of the due process requirement upon such proceedings.” In re Gault, 387 U. S. 1, 13-14 (1967). We have held that certain basic constitutional protections enjoyed by adults accused of crimes also apply to juveniles. See id., at 31-57 (notice of charges, right to counsel, privilege against self-incrimination, right to confrontation and cross-examination); In re Winship, 397 U. S. 358 (1970) (proof beyond a reasonable doubt); Breed v. Jones, 421 U. S. 519 (1975) (double jeopardy). But the Constitution does not mandate elimination of all differences in the treatment of juveniles. See, e. g., McKeiver v. Pennsylvania, 403 U. S. 528 (1971) (no right to jury trial). The State has “a parens patriae interest in preserving and promoting the welfare of the child,” Santosky v. Kramer, 455 U. S. 745, 766 (1982), which makes a juvenile proceeding fundamentally different from an adult criminal trial. We have tried, therefore, to strike a balance—to respect the “informality” and “flexibility” that characterize juvenile proceedings, In re Winship, supra, at 366, and yet to ensure that such proceedings comport with the “fundamental fairness” demanded by the Due Process Clause. Breed n. Jones, supra, at 531; McKeiver, supra, at 543 (plurality opinion). The statutory provision at issue in these cases, § 320.5(3)(b), permits a brief pretrial detention based on a finding of a “serious risk” that an arrested juvenile may commit a crime before his return date. The question before us is whether preventive detention of juveniles pursuant to §320.5(3)(b) is compatible with the “fundamental fairness” required by due process. Two separate inquiries are necessary to answer this question. First, does preventive detention under the that the statute was procedurally infirm because it granted unbridled discretion to Family Court judges to make an inherently uncertain prediction of future criminal behavior. 689 F. 2d, at 377. 264 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. New York statute serve a legitimate state objective? See Bell v. Wolfish, 441 U. S. 520, 534, n. 15 (1979); Kennedy v. Mendoza-Martinez, 372 U. S. 144, 168-169 (1963). And, second, are the procedural safeguards contained in the FC A adequate to authorize the pretrial detention of at least some juveniles charged with crimes? See Mathews n. Eldridge, 424 U. S. 319, 335 (1976); Gerstein v. Pugh, 420 U. S. 103, 114 (1975). A Preventive detention under the FC A is purportedly designed to protect the child and society from the potential consequences of his criminal acts. People ex rel. Waybum v. Schupf, 39 N. Y. 2d, at 689-690, 350 N. E. 2d, at 910. When making any detention decision, the Family Court judge is specifically directed to consider the needs and best interests of the juvenile as well as the need for the protection of the community. FC A §301.1; In re Craig S., 57 App. Div. 2d 761, 394 N. Y. S. 2d 200 (1977). In Bell n. Wolfish, supra, at 534, n. 15, we left open the question whether any governmental objective other than ensuring a detainee’s presence at trial may constitutionally justify pretrial detention. As an initial matter, therefore, we must decide whether, in the context of the juvenile system, the combined interest in protecting both the community and the juvenile himself from the consequences of future criminal conduct is sufficient to justify such detention. The “legitimate and compelling state interest” in protecting the community from crime cannot be doubted. De Veau n. Braisted, 363 U. S. 144, 155 (1960). See also Terry v. Ohio, 392 U. S. 1, 22 (1968). We have stressed before that crime prevention is “a weighty social objective,” Brown n. Texas, 443 U. S. 47, 52 (1979), and this interest persists undiluted in the juvenile context. See In re Gault, supra, at 20, n. 26. The harm suffered by the victim of a crime is not de SCHALL v. MARTIN 265 253 Opinion of the Court pendent upon the age of the perpetrator.14 And the harm to society generally may even be greater in this context given the high rate of recidivism among juveniles. In re Gault, supra, at 22. The juvenile’s countervailing interest in freedom from institutional restraints, even for the brief time involved here, is undoubtedly substantial as well. See In re Gault, supra, at 27. But that interest must be qualified by the recognition that juveniles, unlike adults, are always in some form of custody. Lehman v. Lycoming County Children’s Services, 458 U. S. 502, 510-511 (1982); In re Gault, supra, at 17. Children, by definition, are not assumed to have the capacity to take care of themselves. They are assumed to be subject to the control of their parents, and if parental control falters, the State must play its part as parens patriae. See State v. Gleason, 404 A. 2d 573, 580 (Me. 1979); People ex rel. Way burn v. Schupf, supra, at 690, 350 N. E. 2d, at 910; Baker v. Smith, 477 S. W. 2d 149, 150-151 (Ky. App. 1971). In this respect, the juvenile’s liberty interest may, in appropriate circumstances, be subordinated to the State’s “parens patriae interest in preserving and promoting the welfare of the child.” Santosky v. Kramer, supra, at 766. The New York Court of Appeals, in upholding the statute at issue here, stressed at some length “the desirability of protecting the juvenile from his own folly.” People ex rel. Waybum v. Schupf, supra, at 688-689, 350 N. E. 2d, at 909.15 14 In 1982, juveniles under 16 accounted for 7.5 percent of all arrests for violent crimes, 19.9 percent of all arrests for serious property crime, and 17.3 percent of all arrests for violent and serious property crimes combined. U. S. Dept, of Justice, Federal Bureau of Investigation, Crime in the United States 176-177 (1982) (“violent crimes” include murder, non-negligent manslaughter, forcible rape, robbery, and aggravated assault; “serious property crimes” include burglary, larceny-theft, motor vehicle theft, and arson). 15 “Our society recognizes that juveniles in general are in the earlier stages of their emotional growth, that their intellectual development is 266 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. Society has a legitimate interest in protecting a juvenile from the consequences of his criminal activity—both from potential physical injury which may be suffered when a victim fights back or a policeman attempts to make an arrest and from the downward spiral of criminal activity into which peer pressure may lead the child. See L. 0. W. v. District Court of Arapahoe, 623 P. 2d 1253, 1258-1259 (Colo. 1981); Morris v. D’Amar io, 416 A. 2d 137, 140 (R. I. 1980). See also Eddings n. Oklahoma, 455 U. S. 104, 115 (1982) (minority “is a time and condition of life when a person may be most susceptible to influence and to psychological damage”); Bellotti v. Baird, 443 U. S. 622, 635 (1979) (juveniles “often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them”). The substantiality and legitimacy of the state interests underlying this statute are confirmed by the widespread use and judicial acceptance of preventive detention for juveniles. Every State, as well as the United States in the District of incomplete, that they have had only limited practical experience, and that their value systems have not yet been clearly identified or firmly adopted. . . . “For the same reasons that our society does not hold juveniles to an adult standard of responsibility for their conduct, our society may also conclude that there is a greater likelihood that a juvenile charged with delinquency, if released, will commit another criminal act than that an adult charged with crime will do so. To the extent that self-restraint may be expected to constrain adults, it may not be expected to operate with equal force as to juveniles. Because of the possibility of juvenile delinquency treatment and the absence of second-offender sentencing, there will not be the deterrent for the juvenile which confronts the adult. Perhaps more significant is the fact that in consequence of lack of experience and comprehension the juvenile does not view the commission of what are criminal acts in the same perspective as an adult. . . . There is the element of gamesmanship and the excitement of ‘getting away’ with something and the powerful inducement of peer pressures. All of these commonly acknowledged factors make the commission of criminal conduct on the part of juveniles in general more likely than in the case of adults.” People ex rel. Way burn v. Schupf, 39 N. Y. 2d, at 687-688, 350 N. E. 2d, at 908-909. SCHALL v. MARTIN 267 253 Opinion of the Court Columbia, permits preventive detention of juveniles accused of crime.16 A number of model juvenile justice Acts also contain provisions permitting preventive detention.17 And the 16 Ala. Code § 12-15-59 (1975); Alaska Stat. Ann. § 47.10.140 (1979); Rule 3, Ariz. Juv. Ct. Rules of Proc., Ariz. Rev. Stat. Ann. (Supp. 1983-1984 to vol. 17A); Ark. Stat. Ann. § 45-421 (Supp. 1983); Cal. Welf. & Inst. Code Ann. § 628 (West Supp. 1984); Colo. Rev. Stat. § 19-2-102 (Supp. 1983); Conn. Gen. Stat. § 46b-131 (Supp. 1984); Del. Fam. Ct. Rule 60 (1981); D. C. Code §16-2310 (1981); Fla. Stat. §39.032 (Supp. 1984); Ga. Code Ann. §15-11-19 (1982); Haw. Rev. Stat. §571-31.1 (Supp. 1984); Idaho Code §16-1811 (Supp. 1983); Ill. Rev. Stat., ch. 37, §703-4 (1983); Ind. Code §31-6-4-5 (1982); Iowa Code §232.22 (1983); Kan. Stat. Ann. §38-1632 (Supp. 1983); Ky. Rev. Stat. §208.192 (1982); La. Code Juv. Proc. Ann., Art. 40 (West 1983 Pamphlet); Me. Rev. Stat. Ann., Tit. 15, §3203 (1964 and Supp. 1983-1984); Md. Cts. & Jud. Proc. Code Ann. §3-815 (1984); Mass. Gen. Laws Ann., ch. 119, §66 (West Supp. 1983-1984); Mich. Comp. Laws §712A.15 (1979); Minn. Stat. §260.171 (1982); Miss. Code Ann. §43-23-11 (1972); Mo. Juv. Ct. Rule 111.02 (1981); Mont. Code Ann. § 41-5-305 (1983); Neb. Rev. Stat. § 43-255 (Supp. 1982); Nev. Rev. Stat. §62.140 (1983); N. H. Rev. Stat. Ann. §169B:14 (Supp. 1983); N. J. Stat. Ann. § 2A:4-56 (Supp. 1983-1984); N. M. Stat. Ann. §32-1-24 (1981); N. Y. FCA §320.5(3) (McKinney 1983); N. C. Gen. Stat. §7A-574 (Supp. 1983); N. D. Cent. Code §27-20-14 (1974); Ohio Rev. Code Ann. §2151.311 (1976); Okla. Stat., Tit. 10, § 1107 (Supp. 1983); Ore. Rev. Stat. § 419.573 (1983); 42 Pa. Cons. Stat. § 6325 (1982); R. I. Gen. Laws §§14-1-20, 14-1-21 (1981); S. C. Code §20-7-600 (Supp. 1983); S. D. Codified Laws § 26-8-19.2 (Supp. 1983); Tenn. Code Ann. § 37-1-114 (1984); Tex. Fam. Code Ann. §53.02 (1975 and Supp. 1984); Utah Code Ann. §78-3a-30 (Supp. 1983); Vt. Stat. Ann., Tit. 33, §643 (1981); Va. Code § 16.1-248 (1982); Wash. Rev. Code § 13.40.040 (1983); W. Va. Code §49-5-8 (Supp. 1983); Wis. Stat. §48.208 (1981-1982); Wyo. Stat. § 14-6-206 (1977). 17 See U. S. Dept, of Justice, Office of Juvenile Justice and Delinquency Prevention, Standards for the Administration of Juvenile Justice, Report of the National Advisory Committee for Juvenile Justice and Delinquency Prevention 294-296 (July 1980); Uniform Juvenile Court Act § 14, 9A U. L. A. 22 (1979); Standard Juvenile Court Act, Art. IV, § 16, proposed by the National Council on Crime and Delinquency (1959); W. Sheridan, Legislative Guide for Drafting Family and Juvenile Court Acts § 20(a)(1) (Dept, of HEW, Children’s Bureau, Pub. No. 472-1969); see also Standards for Juvenile and Family Courts 62-63 (Dept, of HEW, Children’s Bureau, 268 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. courts of eight States, including the New York Court of Appeals, have upheld their statutes with specific reference to protecting the juvenile and the community from harmful pretrial conduct, including pretrial crime. L. 0. W. v. District Court of Arapahoe, supra, at 1258-1259; Morris v. D Amar io, supra, at 139-140; State v. Gleason, 404 A. 2d, at 583; Pauley n. Gross, 1 Kan. App. 2d 736, 738-740, 574 P. 2d 234, 237-238 (1977); People ex rel. Wayburn v. Schupf, 39 N. Y. 2d, at 688-689, 350 N. E. 2d, at 909-910; Aubrey v. Gadbois, 50 Cal. App. 3d 470, 472, 123 Cal. Rptr. 365, 366 (1975); Baker v. Smith, 477 S. W. 2d, at 150-151; Commonwealth ex rel. Sprowal v. Hendrick, 438 Pa. 435, 438-439, 265 A. 2d 348, 349-350 (1970). “The fact that a practice is followed by a large number of states is not conclusive in a decision as to whether that practice accords with due process, but it is plainly worth considering in determining whether the practice ‘offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ Snyder v. Massachusetts, 291 U. S. 97, 105 (1934).” Leland v. Oregon, 343 U. S. 790, 798 (1952). In light of the uniform legislative judgment that pretrial detention of juveniles properly promotes the interests both of society and the juvenile, we conclude that the practice serves a legitimate regulatory purpose compatible with the “fundamental fairness” demanded by the Due Process Clause in juvenile proceedings. Cf. McKeiver v. Pennsylvania, 403 U. S., at 548 (plurality opinion).18 Pub. No. 437-1966). Cf. Institute of Judicial Administration/American Bar Association Project on Juvenile Justice Standards Relating to Interim Status: The Release, Control, and Detention of Accused Juvenile Offenders Between Arrest and Disposition § 3.2(B) (Tent. Draft 1977) (detention limited to “reducing the likelihood that the juvenile may inflict serious bodily harm on others during the interim”). 18 Appellees argue that some limit must be placed on the categories of crimes that detained juveniles must be accused of having committed or being likely to commit. But the discretion to delimit the categories of SCHALL v. MARTIN 269 253 Opinion of the Court Of course, the mere invocation of a legitimate purpose will not justify particular restrictions and conditions of confinement amounting to punishment. It is axiomatic that “[d]ue process requires that a pretrial detainee not be punished.” Bell v. Wolfish, 441 U. S., at 535, n. 16. Even given, therefore, that pretrial detention may serve legitimate regulatory purposes, it is still necessary to determine whether the terms and conditions of confinement under §320.5(3)(b) are in fact compatible with those purposes. Kennedy n. Mendoza-Martinez, 372 U. S., at 168-169. “A court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose.” Bell v. Wolfish, supra, at 538. Absent a showing of an express intent to punish on the part of the State, that determination generally will turn on “whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it].” Kennedy v. Mendoza-Martinez, supra, at 168-189. See Bell n. Wolfish, supra, at 538; Flemming n. Nestor, 363 U. S. 603, 613-614 (1960). There is no indication in the statute itself that preventive detention is used or intended as a punishment. First of all, the detention is strictly limited in time. If a juvenile is detained at his initial appearance and has denied the charges crimes justifying detention, like the discretion to define criminal offenses and prescribe punishments, resides wholly with the state legislatures. Whalen v. United States, 445 U. S. 684, 689 (1980); Rochin v. California, 342 U. S. 165, 168 (1952). See also Rummel v. Estelle, 445 U. S. 263, 275 (1980) (“the presence or absence of violence does not always affect the strength of society’s interest in deterring a particular crime”). More fundamentally, this sort of attack on a criminal statute must be made on a case-by-case basis. United States v. Raines, 362 U. S. 17, 21 (1960). The Court will not sift through the entire class to determine whether the statute was constitutionally applied in each case. And, outside the limited First Amendment context, a criminal statute may not be attacked as overbroad. See New York v. Ferber, 458 U. S. 747 (1982). 270 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. against him, he is entitled to a probable-cause hearing to be held not more than three days after the conclusion of the initial appearance or four days after the filing of the petition, whichever is sooner. FC A § 325.1(2).19 If the Family Court judge finds probable cause, he must also determine whether continued detention is necessary pursuant to §320.5(3)(b). §325.3(3). Detained juveniles are also entitled to an expedited factfinding hearing. If the juvenile is charged with one of a limited number of designated felonies, the factfinding hearing must be scheduled to commence not more than 14 days after the conclusion of the initial appearance. §340.1. If the juvenile is charged with a lesser offense, then the factfinding hearing must be held not more than three days after the initial appearance.20 In the latter case, since the times for the probable-cause hearing and the factfinding hearing coincide, the two hearings are merged. Thus, the maximum possible detention under §320.5(3)(b) of a youth accused of a serious crime, assuming a 3-day extension of the factfinding hearing for good cause shown, is 17 days. The maximum detention for less serious crimes, again assuming a 3-day extension for good cause shown, is six days. These time frames seem suited to the limited purpose of providing the youth with a controlled environment and separating him from improper influences pending the speedy disposition of his case. The conditions of confinement also appear to reflect the regulatory purposes relied upon by the State. When a juvenile is remanded after his initial appearance, he cannot, absent exceptional circumstances, be sent to a prison or lockup where he would be exposed to adult criminals. FCA 19 For good cause shown, the court may adjourn the hearing, but for no more than three additional court days. FCA § 325.1(3). 20 In either case, the court may adjourn the hearing for not more than three days for good cause shown. FCA § 340.1(3). The court must state on the record the reason for any adjournment. § 340.1(4). SCHALL v. MARTIN 271 253 Opinion of the Court § 304.1(2). Instead, the child is screened by an “assessment unit” of the Department of Juvenile Justice. Testimony of Mr. Kelly (Deputy Commissioner of Operations, New York City Department of Juvenile Justice), App. 286-287. The assessment unit places the child in either nonsecure or secure detention. Nonsecure detention involves an open facility in the community, a sort of “halfway house,” without locks, bars, or security officers where the child receives schooling and counseling and has access to recreational facilities. Id., at 285; Testimony of Mr. Benjamin, id., at 149-150. Secure detention is more restrictive, but it is still consistent with the regulatory and parens patriae objectives relied upon by the State. Children are assigned to separate dorms based on age, size, and behavior. They wear street clothes provided by the institution and partake in educational and recreational programs and counseling sessions run by trained social workers. Misbehavior is punished by confinement to one’s room. See Testimony of Mr. Kelly, id., at 292-297. We cannot conclude from this record that the controlled environment briefly imposed by the State on juveniles in secure pretrial detention “is imposed for the purpose of punishment” rather than as “an incident of some other legitimate governmental purpose.” Bell v. Wolfish, 441 U. S., at 538. The Court of Appeals, of course, did conclude that the underlying purpose of §320.5(3)(b) is punitive rather than regulatory. But the court did not dispute that preventive detention might serve legitimate regulatory purposes or that the terms and conditions of pretrial confinement in New York are compatible with those purposes. Rather, the court invalidated a significant aspect of New York’s juvenile justice system based solely on some case histories and a statistical study which appeared to show that “the vast majority of juveniles detained under [§ 320.5(3)(b)] either have their petitions dismissed before an adjudication of delinquency or are released after adjudication.” 689 F. 2d, at 369. The court assumed that dismissal of a petition or failure to confine a juvenile at 272 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. the dispositional hearing belied the need to detain him prior to factfinding and that, therefore, the pretrial detention constituted punishment. Id., at 373. Since punishment imposed without a prior adjudication of guilt is per se illegitimate, the Court of Appeals concluded that no juveniles could be held pursuant to §320.5(3)(b). There are some obvious flaws in the statistics and case histories relied upon by the lower court.21 But even assuming it to be the case that “by far the greater number of juveniles incarcerated under [§ 320.5(3)(b)J will never be confined as a consequence of a disposition imposed after an adjudication of delinquency,” 689 F. 2d, at 371-372, we find that to be an insufficient ground for upsetting the widely shared legislative judgment that preventive detention serves an important and legitimate function in the juvenile justice system. We are unpersuaded by the Court of Appeals’ rather cavalier equation of detentions that do not lead to continued confinement after an adjudication of guilt and “wrongful” or “punitive” pretrial detentions. Pretrial detention need not be considered punitive merely because a juvenile is subsequently discharged subject to con 21 For example, as the Court of Appeals itself admits, 689 F. 2d, at 369, n. 18, the statistical study on which it relied mingles indiscriminately detentions under §320.5(3)(b) with detentions under §320.5(3)(a). The latter provision applies only to juveniles who are likely not to appear on the return date if not detained, and appellees concede that such juveniles may be lawfully detained. Brief for Appellees 93. Furthermore, the 34 case histories on which the court relied were handpicked by appellees’ counsel from over a 3-year period. Compare Petitioners’ Exhibit 19a (detention of Geraldo Delgado on March 5,1976) with Petitioners’ Exhibit 35a (detention of James Ancrum on August 19, 1979). The Court of Appeals stated that appellants did not contest the representativeness of these case histories. 689 F. 2d, at 369, n. 19. Appellants argue, however, that there was no occasion to contest their representativeness because the case histories were not even offered by appellees as a representative sample, and were not evaluated by appellees’ expert statistician or the District Court in that light. See Brief for Appellant in No. 82-1278, pp. 24-25, n.**. We need not resolve this controversy. SCHALL v. MARTIN 273 253 Opinion of the Court ditions or put on probation. In fact, such actions reinforce the original finding that close supervision of the juvenile is required. Lenient but supervised disposition is in keeping with the Act’s purpose to promote the welfare and development of the child.22 As the New York Court of Appeals noted: “It should surprise no one that caution and concern for both the juvenile and society may indicate the more conservative decision to detain at the very outset, whereas the later development of very much more relevant information may prove that while a finding of delinquency was warranted, placement may not be indicated.” People ex rel. Waybum v. Schupf, 39 N. Y. 2d, at 690, 350 N. E. 2d, at 910. Even when a case is terminated prior to factfinding, it does not follow that the decision to detain the juvenile pursuant to § 320.5(3)(b) amounted to a due process violation. A delinquency petition may be dismissed for any number of reasons collateral to its merits, such as the failure of a witness to testify. The Family Court judge cannot be expected to anticipate such developments at the initial hearing. He makes his decision based on the information available to him at that time, and the propriety of the decision must be judged in that light. Consequently, the final disposition of a case is “largely irrelevant” to the legality of a pretrial detention. Baker v. McCollan, 443 U. S. 137, 145 (1979). It may be, of course, that in some circumstances detention of a juvenile would not pass constitutional muster. But the validity of those detentions must be determined on a case-by-case basis. Section 320.5(3)(b) is not invalid “on its face” by 22 Judge Quinones testified that detention at disposition is considered a “harsh solution.” At the dispositional hearing, the Family Court judge usually has “a much more complete picture of the youngster” and tries to tailor the least restrictive dispositional order compatible with that picture. Testimony of Judge Quinones, App. 279-281. 274 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. reason of the ambiguous statistics and case histories relied upon by the court below.23 We find no justification for the conclusion that, contrary to the express language of the statute and the judgment of the highest state court, §320.5(3)(b) is a punitive rather than a regulatory measure. Preventive detention under the FC A serves the legitimate state objective, held in common with every State in the country, of protecting both the juvenile and society from the hazards of pretrial crime. B Given the legitimacy of the State’s interest in preventive detention, and the nonpunitive nature of that detention, the remaining question is whether the procedures afforded juveniles detained prior to factfinding provide sufficient protection against erroneous and unnecessary deprivations of liberty. See Mathews v. Eldridge, 424 U. S., at 33S.24 In Gerstein v. Pugh, 420 U. S., at 114, we held that a judicial 23 Several amici argue that similar statistics obtain throughout the country. See, e. g., Brief for American Bar Association as Amicus Curiae 23; Brief for Association for Children of New Jersey as Amicus Curiae 8, 11; Brief for Youth Law Center et al. as Amici Curiae 13-14. But even if New York’s experience were duplicated on a national scale, that fact would not lead us, as amici urge, to conclude that every State and the United States are illicitly punishing juveniles prior to their trial. On the contrary, if such statistics obtain nationwide, our conclusion is strengthened that the existence of the statistics in these cases is not a sufficient ground for striking down New York’s statute. As already noted: “The fact that a practice is followed by a large number of states is not conclusive in a decision as to whether that practice accords with due process, but it is plainly worth considering in determining whether the practice ‘offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ Snyder v. Massachusetts, 291 U. S. 97, 105 (1934).” Leland v. Oregon, 343 U. S. 790, 798 (1952). 24 Appellees urge the alleged lack of procedural safeguards as an alternative ground for upholding the judgment of the Court of Appeals. Brief for Appellees 62-75. The court itself intimated that it would reach the same result on that ground, 689 F. 2d, at 373-374, and Judge Newman, in his concurrence, relied expressly on perceived procedural flaws in the statute. Accordingly, we deem it necessary to consider the question. SCHALL v. MARTIN 275 253 Opinion of the Court determination of probable cause is a prerequisite to any extended restraint on the liberty of an adult accused of crime. We did not, however, mandate a specific timetable. Nor did we require the “full panoply of adversary safeguards—counsel, confrontation, cross-examination, and compulsory process for witnesses.” Id., at 119. Instead, we recognized “the desirability of flexibility and experimentation by the States.” Id., at 123. Gerstein arose under the Fourth Amendment, but the same concern with “flexibility” and “informality,” while yet ensuring adequate predetention procedures, is present in this context. In re Winship, 397 U. S., at 366; Kent v. United States, 383 U. S. 541, 554 (1966). In many respects, the FCA provides far more predetention protection for juveniles than we found to be constitutionally required for a probable-cause determination for adults in Gerstein. The initial appearance is informal, but the accused juvenile is given full notice of the charges against him and a complete stenographic record is kept of the hearing. See 513 F. Supp., at 702. The juvenile appears accompanied by his parent or guardian.25 He is first informed of his rights, including the right to remain silent and the right to be represented by counsel chosen by him or by a law guardian assigned by the court. FCA §320.3. The initial appearance may be adjourned for no longer than 72 hours or until the next court day, whichever is sooner, to enable an appointed law guardian or other counsel to appear before the court. §320.2(3). When his counsel is present, the juvenile is informed of the charges against him and furnished with a copy of the delinquency petition. §320.4(1). A representative from the presentment agency appears in support of the petition. The nonhearsay allegations in the delinquency petition and supporting depositions must establish probable cause to 26 If the juvenile’s parent or guardian fails to appear after reasonable and substantial efforts have been made to notify such person, the court must appoint a law guardian for the child. FCA § 320.3. 276 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. believe the juvenile committed the offense. Although the Family Court judge is not required to make a finding of probable cause at the initial appearance, the youth may challenge the sufficiency of the petition on that ground. FCA § 315.1. Thus, the juvenile may oppose any recommended detention by arguing that there is not probable cause to believe he committed the offense or offenses with which he is charged. If the petition is not dismissed, the juvenile is given an opportunity to admit or deny the charges. § 321.1.26 At the conclusion of the initial appearance, the presentment agency makes a recommendation regarding detention. A probation officer reports on the juvenile’s record, including other prior and current Family Court and probation contacts, as well as relevant information concerning home life, school attendance, and any special medical or developmental problems. He concludes by offering his agency’s recommendation on detention. Opposing counsel, the juvenile’s parents, and the juvenile himself may all speak on his behalf and challenge any information or recommendation. If the judge does decide to detain the juvenile under §320.5(3)(b), he must state on the record the facts and reasons for the detention.27 26 If the child chooses to remain silent, he is assumed to deny the charges. FCA §321.1. With the consent of the court and of the presentment agency, the child may admit to a lesser charge. If he wishes to admit to the charges or to a lesser charge, the court must, before accepting the admission, advise the child of his right to a factfinding hearing and of the possible specific dispositional orders that may result from the admission. Ibid. The court must also satisfy itself that the child actually did commit the acts to which he admits. Ibid. With the consent of the victim or complainant and the juvenile, the court may also refer a case to the probation service for adjustment. If the case is subsequently adjusted, the petition is then dismissed. § 320.6. 27 Given that under Gerstein, 420 U. S., at 119-123, a probable-cause hearing may be informal and nonadversarial, a Family Court judge could make a finding of probable cause at the initial appearance. That he is not required to do so does not, under the circumstances, amount to a deprivation of due process. Appellees fail to point to a single example where probable cause was not found after a decision was made to detain the child. SCHALL v. MARTIN 277 253 Opinion of the Court As noted, a detained juvenile is entitled to a formal, adversarial probable-cause hearing within three days of his initial appearance, with one 3-day extension possible for good cause shown.28 The burden at this hearing is on the presentment agency to call witnesses and offer evidence in support of the charges. §325.2. Testimony is under oath and subject to cross-examination. Ibid. The accused juvenile may call witnesses and offer evidence in his own behalf. If the court finds probable cause, the court must again decide whether continued detention is necessary under § 320.5(3)(b). Again, the facts and reasons for the detention must be stated on the record. In sum, notice, a hearing, and a statement of facts and reasons are given prior to any detention under § 320.5(3)(b). A formal probable-cause hearing is then held within a short while thereafter, if the factfinding hearing is not itself scheduled within three days. These flexible procedures have been found constitutionally adequate under the Fourth Amendment, see Gerstein v. Pugh, and under the Due Process Clause, see Kent v. United States, supra, at 557. Appellees have failed to note any additional procedures that would significantly improve the accuracy of the determination without unduly impinging on the achievement of legitimate state purposes.29 “The Court in Gerstein indicated approval of pretrial detention procedures that supplied a probable-cause hearing within five days of the initial detention. Id., at 124, n. 25. The brief delay in the probable-cause hearing may actually work to the advantage of the juvenile since it gives his counsel, usually appointed at the initial appearance pursuant to FC A § 320.2(2), time to prepare. 29 Judge Newman, in his concurrence below, offered a list of statutory improvements. These suggested changes included: limitations on the crimes for which the juvenile has been arrested or which he is likely to commit if released; a determination of the likelihood that the juvenile committed the crime; an assessment of the juvenile’s background; and a more specific standard of proof. The first and second of these suggestions have already been considered. See nn. 18 and 27, supra. We need only add to 278 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. Appellees argue, however, that the risk of erroneous and unnecessary detentions is too high despite these procedures because the standard for detention is fatally vague. Detention under §320.5(3)(b) is based on a finding that there is a “serious risk” that the juvenile, if released, would commit a crime prior to his next court appearence. We have already seen that detention of juveniles on that ground serves legitimate regulatory purposes. But appellees claim, and the District Court agreed, that it is virtually impossible to predict future criminal conduct with any degree of accuracy. Moreover, they say, the statutory standard fails to channel the discretion of the Family Court judge by specifying the factors on which he should rely in making that prediction. The procedural protections noted above are thus, in their view, unavailing because the ultimate decision is intrinsically arbitrary and uncontrolled. Our cases indicate, however, that from a legal point of view there is nothing inherently unattainable about a prediction of future criminal conduct. Such a judgment forms an important element in many decisions,30 and we have specifically re the discussion in n. 18 that there is no indication that delimiting the category of crimes justifying detention would improve the accuracy of the §320.5(3)(b) determination in any respect. The third and fourth suggestions are discussed in text, infra. 30 See Jurek v. Texas, 428 U. S. 262, 274-275 (1976) (death sentence imposed by jury); Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1, 9-10 (1979) (grant of parole); Morrissey v. Brewer, 408 U. S. 471, 480 (1972) (parole revocation). A prediction of future criminal conduct may also form the basis for an increased sentence under the “dangerous special offender” statute, 18 U. S. C. § 3575. Under § 3575(f), a “dangerous” offender is defined as an individual for whom “a period of confinement longer than that provided for such [underlying] felony is required for the protection of the public from further criminal conduct by the defendant.” The statute has been challenged numerous times on the grounds that the standard is unconstitutionally vague. Every Court of Appeals considering the question has rejected that claim. United States v. Davis, 710 F. 2d 104, 108-109 (CA3), cert, denied, 464 U. S. 1001 (1983); United States v. Schell, 692 F. 2d 672, SCHALL v. MARTIN 279 253 Opinion of the Court jected the contention, based on the same sort of sociological data relied upon by appellees and the District Court, “that it is impossible to predict future behavior and that the question is so vague as to be meaningless.” Jurek v. Texas, 428 U. S. 262, 274 (1976) (opinion of Stewart, Powell, and Stevens, JJ.); id., at 279 (White, J., concurring in judgment). We have also recognized that a prediction of future criminal conduct is “an experienced prediction based on a host of variables” which cannot be readily codified. Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1,16 (1979). Judge Quinones of the Family Court testified at trial that he and his colleagues make a determination under §320.5(3)(b) based on numerous factors including the nature and seriousness of the charges; whether the charges are likely to be proved at trial; the juvenile’s prior record; the adequacy and effectiveness of his home supervision; his school situation, if known; the time of day of the alleged crime as evidence of its seriousness and a possible lack of parental control; and any special circumstances that might be brought to his attention by the probation officer, the child’s attorney, or any parents, relatives, or other responsible persons accompanying the child. Testimony of Judge Quinones, App. 254-267. The decision is based on as much information as can reasonably be obtained at the initial appearance. Ibid. Given the right to a hearing, to counsel, and to a statement of reasons, there is no reason that the specific factors upon which the Family Court judge might rely must be specified in the statute. As the New York Court of Appeals concluded, People ex rel. Waybum v. Schupf, 39 N. Y. 2d, at 690, 350 N. E. 2d, at 910, “to a very real extent Family Court must exercise a substitute parental control for which there can be 675-676 (CAIO 1982); United States v. Williamson, 567 F. 2d 610, 613 (CA4 1977); United States v. Bowdach, 561 F. 2d 1160, 1175 (CA5 1977); United States v. Neary, 552 F. 2d 1184, 1194 (CA7), cert, denied, 434 U. S. 864 (1977); United States v. Stewart, 531 F. 2d 326, 336-337 (CA6), cert, denied, 426 U. S. 922 (1976). 280 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. no particularized criteria.” There is also no reason, we should add, for a federal court to assume that a state court judge will not strive to apply state law as conscientiously as possible. Sumner v. Mata, 449 U. S. 539, 549 (1981). It is worth adding that the Court of Appeals for the Second Circuit was mistaken in its conclusion that “[i]ndividual litigation ... is a practical impossibility because the periods of detention are so short that the litigation is mooted before the merits are determined.” 689 F. 2d, at 373. In fact, one of the juveniles in the very case histories upon which the court relied was released from pretrial detention on a writ of habeas corpus issued by the State Supreme Court. New York courts also have adopted a liberal view of the doctrine of “capable of repetition, yet evading review” precisely in order to ensure that pretrial detention orders are not unreviewable. In People ex rel. Waybum v. Schupf, supra, at 686, 350 N. E. 2d, at 908, the court declined to dismiss an appeal from the grant of a writ of habeas corpus despite the technical mootness of the case. “Because the situation is likely to recur . . . and the substantial issue may otherwise never be reached (in view of the predictably recurring happenstance that, however expeditiously an appeal might be prosecuted, fact-finding and dispositional hearings normally will have been held and a disposition made before the appeal could reach us), ... we decline to dismiss [the appeal] on the ground of mootness.” The required statement of facts and reasons justifying the detention and the stenographic record of the initial appearance will provide a basis for the review of individual cases. Pretrial detention orders in New York may be reviewed by writ of habeas corpus brought in State Supreme Court. And the judgment of that court is appealable as of right and may be taken directly to the Court of Appeals if a constitutional question is presented. N. Y. Civ. Prac. Law § 5601(b)(2) SCHALL v. MARTIN 281 253 Marshall, J., dissenting (McKinney 1978). Permissive appeal from a Family Court order may also be had to the Appellate Division. FCA §365.2. Or a motion for reconsideration may be directed to the Family Court judge. § 355. l(l)(b). These postdetention procedures provide a sufficient mechanism for correcting on a case-by-case basis any erroneous detentions ordered under §320.5(3). Such procedures may well flesh out the standards specified in the statute. Ill The dissent would apparently have us strike down New York’s preventive detention statute on two grounds: first, because the preventive detention of juveniles constitutes poor public policy, with the balance of harms outweighing any positive benefits either to society or to the juveniles themselves, post, at 290-291, 308, and, second, because the statute could have been better drafted to improve the quality of the decisionmaking process, post, at 304-306. But it is worth recalling that we are neither a legislature charged with formulating public policy nor an American Bar Association committee charged with drafting a model statute. The question before us today is solely whether the preventive detention system chosen by the State of New York and applied by the New York Family Court comports with constitutional standards. Given the regulatory purpose for the detention and the procedural protections that precede its imposition, we conclude that § 320.5(3)(b) of the New York FCA is not invalid under the Due Process Clause of the Fourteenth Amendment. The judgment of the Court of Appeals is Reversed. Justice Marshall, with whom Justice Brennan and Justice Stevens join, dissenting. The New York Family Court Act governs the treatment of persons between 7 and 16 years of age who are alleged to have committed acts that, if committed by adults, would 282 OCTOBER TERM, 1983 Marshall, J., dissenting 467 U. S. constitute crimes.1 The Act contains two provisions that authorize the detention of juveniles arrested for offenses covered by the Act2 for up to 17 days pending adjudication of their guilt.3 Section 320.5(3)(a) empowers a judge of the New York Family Court to order detention of a juvenile if he finds “there is a substantial probability that [the juvenile] will not appear in court on the return date.” Section 320.5(3)(b), the provision at issue in these cases, authorizes detention if the judge finds “there is a serious risk [the juvenile] may before the return date commit an act which if committed by an adult would constitute a crime.”4 ’N.Y. Jud. Law §§301.2(1), 302.1(1) (McKinney 1983) (hereinafter Family Court Act or FCA). Children aged 13 or over accused of murder and children aged 14 or over accused of kidnaping, arson, rape, or a few other serious crimes are exempted from the coverage of the Act and instead are prosecuted as “juvenile offenders” in the adult criminal courts. N. Y. Penal Law §§ 10.00(18), 30.00(2) (McKinney Supp. 1983-1984). For the sake of simplicity, offenses covered by the Family Court Act, as well as the more serious offenses enumerated above, hereinafter will be referred to generically as crimes. 2 Ironically, juveniles arrested for very serious offenses, see n. 1, supra, are not subject to preventive detention under this or any other provision. 3 Strictly speaking, “guilt” is never adjudicated under the Act; nor is the juvenile ever given a trial. Rather, whether the juvenile committed the offense is ascertained in a “factfinding hearing.” In most respects, however, such a hearing is the functional equivalent of an ordinary criminal trial. For example, the juvenile is entitled to counsel and the State bears the burden of demonstrating beyond a reasonable doubt that the juvenile committed the offense of which he is accused. See FCA §§341.2(1), 342.2(2); cf. In re Winship, 397 U. S. 358 (1970); In re Gault, 387 U. S. 1 (1967) (establishing constitutional limitations on the form of such proceedings in recognition of the severity of their impact upon juveniles). For convenience, the ensuing discussion will use the terminology associated with adult criminal proceedings when describing the treatment of juveniles in New York. 4 At the time appellees first brought their suit, the pertinent portions of FCA § 320.5(3) were embodied in FCA § 739(a). I agree with the majority that the reenactment of the crucial provision under a different numerical heading does not render the case moot. See ante, at 256, n. 2. SCHALL v. MARTIN 283 253 Marshall, J., dissenting There are few limitations on § 320.5(3)(b). Detention need not be predicated on a finding that there is probable cause to believe the child committed the offense for which he was arrested. The provision applies to all juveniles, regardless of their prior records or the severity of the offenses of which they are accused. The provision is not limited to the prevention of dangerous crimes; a prediction that a juvenile if released may commit a minor misdemeanor is sufficient to justify his detention. Aside from the reference to “serious risk,” the requisite likelihood that the juvenile will misbehave before his trial is not specified by the statute. The Court today holds that preventive detention of a juvenile pursuant to § 320.5(3)(b) does not violate the Due Process Clause. Two rulings are essential to the Court’s decision: that the provision promotes legitimate government objectives important enough to justify the abridgment of the detained juveniles’ liberty interests, ante, at 274; and that the provision incorporates procedural safeguards sufficient to prevent unnecessary or arbitrary impairment of constitutionally protected rights, ante, at 277, 279-280. Because I disagree with both of those rulings, I dissent. I The District Court made detailed findings, which the Court of Appeals left undisturbed, regarding the manner in which § 320.5(3)(b) is applied in practice. Unless clearly erroneous, those findings are binding upon us, see Fed. Rule Civ. Proc. 52(a), and must guide our analysis of the constitutional questions presented by these cases. The first step in the process that leads to detention under § 320.5(3)(b) is known as “probation intake.” A juvenile may arrive at intake by one of three routes: he may be brought there directly by an arresting officer; he may be detained for a brief period after his arrest and then taken to intake; he may be released upon arrest and directed to appear at a designated time. United States ex rel. Martin v. Strasburg, 284 OCTOBER TERM, 1983 Marshall, J., dissenting 467 U. S. 513 F. Supp. 691, 701 (SDNY 1981). The heart of the intake procedure is a 10-to-40-minute interview of the juvenile, the arresting officer, and sometimes the juvenile’s parent or guardian. The objectives of the probation officer conducting the interview are to determine the nature of the offense the child may have committed and to obtain some background information on him. Ibid. On the basis of the information derived from the interview and from an examination of the juvenile’s record, the probation officer decides whether the case should be disposed of informally (“adjusted”) or whether it should be referred to the Family Court. If the latter, the officer makes an additional recommendation regarding whether the juvenile should be detained. “There do not appear to be any governing criteria which must be followed by the probation officer in choosing between proposing detention and parole . . . .” Ibid. The actual decision whether to detain a juvenile under §320.5(3)(b) is made by a Family Court judge at what is called an “initial appearance”—a brief hearing resembling an arraignment.5 Id., at 702. The information on which the judge makes his determination is very limited. He has before him a “petition for delinquency” prepared by a state agency, charging the juvenile with an offense, accompanied with one or more affidavits attesting to the juvenile’s involvement. Ordinarily the judge has in addition the written report and recommendation of the probation officer. However, the probation officer who prepared the report rarely attends the hearing. Ibid. Nor is the complainant likely to appear. Consequently, “[o]ften there is no one present with personal knowledge of what happened.” Ibid. In the typical case, the judge appoints counsel for the juvenile at the time his case is called. Thus, the lawyer has no opportunity to make an independent inquiry into the juvenile’s background or character, and has only a few minutes to 6 If the juvenile is detained upon arrest, this hearing must be held on the next court day or within 72 hours, whichever comes first. FCA § 307.3(4). SCHALL v. MARTIN 285 253 Marshall, J., dissenting prepare arguments on the child’s behalf. Id., at 702, 708. The judge ordinarily does not interview the juvenile, id., at 708, makes no inquiry into the truth of allegations in the petition, id., at 702, and does not determine whether there is probable cause to believe the juvenile committed the offense.6 The typical hearing lasts between 5 and 15 minutes, and the judge renders his decision immediately afterward. Ibid. Neither the statute nor any other body of rules guides the efforts of the judge to determine whether a given juvenile is likely to commit a crime before his trial. In making detention decisions, “each judge must rely on his own subjective 6The majority admits that “the Family Court judge is not required to make a finding of probable cause at the initial appearance,” but contends that the juvenile has the option to challenge the sufficiency of the petition for delinquency on the ground that it fails to establish probable cause. Ante, at 276. None of the courts that have considered the constitutionality of New York’s preventive-detention system has suggested that a juvenile has a statutory right to a probable-cause determination before he is detained. The provisions cited by the majority for its novel reading of the statute provide only shaky support for its contention. FCA § 315.1, which empowers the juvenile to move to dismiss a petition lacking allegations sufficient to satisfy § 311.2, provides that “[a] motion to dismiss under this section must be made within the time provided for in section 332.2.” Section 332.2, in turn, provides that pretrial motions shall be made within 30 days after the initial appearance and before the factfinding hearing. If the juvenile has been detained, the judge is instructed to “hear and determine pre-trial motions on an expedited basis,” §332.2(4), but is not required to rule upon such motions peremptorily. In sum, the statutory scheme seems to contemplate that a motion to dismiss a petition for lack of probable cause, accompanied with “supporting affidavits, exhibits and memoranda of law,” § 332.2(2), would be filed sometime after the juvenile is detained under § 320.5(3)(b). And there is no reason to expect that the ruling on such a motion would be rendered before the juvenile would in any event be entitled to a probable-cause hearing under § 325.1(2). That counsel for a juvenile ordinarily is not even appointed until a few minutes prior to the initial appearance, see supra, at 284 and this page, confirms this interpretation. The lesson of this foray into the tangled provisions of the New York Family Court Act is that the majority ought to adhere to our usual policy of relying whenever possible for interpretation of a state statute upon courts better acquainted with its terms and applications. 286 OCTOBER TERM, 1983 Marshall, J., dissenting 467 U. S. judgment, based on the limited information available to him at court intake and whatever personal standards he himself has developed in exercising his discretionary authority under the statute.” Ibid. Family Court judges are not provided information regarding the behavior of juveniles over whose cases they have presided, so a judge has no way of refining the standards he employs in making detention decisions. Id., at 712. After examining a study of a sample of 34 cases in which juveniles were detained under §320.5(3)(b)7 along with various statistical studies of pretrial detention of juveniles in New York,8 the District Court made findings regarding the 7The majority refuses to consider the circumstances of these 34 cases, dismissing them as unrepresentative, ante, at 272, n. 21, and focuses instead on the lurid facts associated with the cases of the three named appellees. I cannot agree that the sample is entitled to so little weight. There was uncontested testimony at trial to the effect that the 34 cases were typical. App. 128 (testimony of Steven Hiltz, an attorney with 8V2 years of experience before the Family Court). At no point in this litigation have appellants offered an alternative selection of instances in which §320.5(3)(b) has been invoked. And most importantly, despite the fact that the District Court relied heavily on the sample when assessing the manner in which the statute is applied, see 513 F. Supp., at 695-700, appellants did not dispute before the Court of Appeals the representativeness of the 34 cases, see Martin v. Strasburg, 689 F. 2d 365, 369, n. 19 (CA2 1982). When the defendants in a plaintiff class action challenge on appeal neither the certification of the class, see ante, at 261, n. 10, nor the plaintiffs’ depiction of the character of the class, we ought to analyze the case as it comes to us and not try to construct a new version of the facts on the basis of an independent and selective review of the record. 8 As the Court of Appeals acknowledged, 689 F. 2d, at 369, n. 18, there are defects in all of the available statistical studies. Most importantly, none of the studies distinguishes persons detained under § 320.5(3)(a) from persons detained under §320.5(3)(b). However, these flaws did not disable the courts below from making meaningful—albeit rough—generalizations regarding the incidence of detention under the latter provision. Especially when conjoined with the sample of 34 cases submitted by appellees, see n. 7, supra, the studies are sufficient to support the three findings enumerated in the text. Even the majority, though it chastises appellees for failing to assemble better data, ante, at 272, and n. 21, does not suggest that those findings are clearly erroneous. SCHALL v. MARTIN 287 253 Marshall, J., dissenting circumstances in which the provision habitually is invoked. Three of those findings are especially germane to appellees’ challenge to the statute. First, a substantial number of “first offenders” are detained pursuant to §320.5(3)(b). For example, at least 5 of the 34 juveniles in the sample had no prior contact with the Family Court before being detained and at least 16 had no prior adjudications of delinquency. Id., at 695-700.9 Second, many juveniles are released—for periods ranging from five days to several weeks—after their arrests and are then detained under §320.5(3)(b), despite the absence of any evidence of misconduct during the time between their arrests and “initial appearances.” Sixteen of the thirty-four cases in the sample fit this pattern. Id., at 705, 713-714. Third, “the overwhelming majority” of the juveniles detained under §320.5(3)(b) are released either before or immediately after their trials, either unconditionally or on parole. Id., at 705. At least 23 of the juveniles in the sample fell into this category. Martin v. Strasburg, 689 F. 2d 365, 369, n. 19 (CA2 1982); see 513 F. Supp., at 695-700. Finally, the District Court made a few significant findings concerning the conditions associated with “secure detention” pursuant to § 320.5(3)(b).10 In a “secure facility,” “[t]he juveniles are subjected to strip-searches, wear institutional clothing and follow institutional regimen. At Spofford [Juvenile Detention Center], which is a secure facility, some juveniles who have had dispositional determinations and were awaiting ’The figures in the text are taken from the District Court’s summary of the 34 cases in the sample. Review of the transcripts of the hearings in those cases reveals the actual number to be 9 and 23, respectively. See Petitioners’ Exhibits 6a, 11a, 12a, 14a, 15a, 16a, 19a, 24a, 35a. 10 The state director of detention services testified that, in 1978, approximately six times as many juveniles were admitted to “secure facilities” as to “non-secure facilities.” See 513 F. Supp., at 703, n. 8. These figures are not broken down as to persons detained under § 320.5(3)(a) and persons detained under § 320.5(3)(b). There seems no dispute, however, that most of the juveniles held under the latter provision are subjected to “secure detention.” 288 OCTOBER TERM, 1983 Marshall, J., dissenting 467 U. S. placement (long term care) commingle with those in pretrial detention (short term care).” Id., at 695, n. 5. It is against the backdrop of these findings that the contentions of the parties must be examined. II A As the majority concedes, ante, at 263, the fact that §320.5(3)(b) applies only to juveniles does not insulate the provision from review under the Due Process Clause. “[N]either the Fourteenth Amendment nor the Bill of Rights is for adults alone.” In re Gault, 387 U. S. 1, 13 (1967). Examination of the provision must of course be informed by a recognition that juveniles have different needs and capacities than adults, see McKeiver n. Pennsylvania, 403 U. S. 528, 550 (1971), but the provision still “must measure up to the essentials of due process and fair treatment,” Kent v. United States, 383 U. S. 541, 562 (1966). To comport with “fundamental fairness,” §320.5(3)(b) must satisfy two requirements. First, it must advance goals commensurate with the burdens it imposes on constitutionally protected interests. Second, it must not punish the juveniles to whom it applies. The majority only grudgingly and incompletely acknowledges the applicability of the first of these tests, but its grip on the cases before us is undeniable. It is manifest that §320.5(3)(b) impinges upon fundamental rights. If the “liberty” protected by the Due Process Clause means anything, it means freedom from physical restraint. Ingraham v. Wright, 430 U. S. 651, 673-674 (1977); Board of Regents n. Roth, 408 U. S. 564, 572 (1972).. Only a very important government interest can justify deprivation of liberty in this basic sense.11 11 This principle underlies prior decisions of the Court involving various constitutional provisions as they relate to pretrial detention. In Gerstein SCHALL v. MARTIN 289 253 Marshall, J., dissenting The majority seeks to evade the force of this principle by discounting the impact on a child of incarceration pursuant to §320.5(3)(b). The curtailment of liberty consequent upon detention of a juvenile, the majority contends, is mitigated by the fact that “juveniles, unlike adults, are always in some form of custody.” Ante, at 265. In any event, the majority argues, the conditions of confinement associated with “secure detention” under §320.5(3)(b) are not unduly burdensome. Ante, at 271. These contentions enable the majority to suggest that § 320.5(3)(b) need only advance a “legitimate state objective” to satisfy the strictures of the Due Process Clause. Ante, at 256-257, 263-264, 274.12 The majority’s arguments do not survive scrutiny. Its characterization of preventive detention as merely a transfer of custody from a parent or guardian to the State is difficult to take seriously. Surely there is a qualitative difference between imprisonment and the condition of being subject to v. Pugh, 420 U. S. 103, 113-114 (1975), we relied in part on the severity of “[t]he consequences of prolonged detention” in construing the Fourth Amendment to forbid pretrial incarceration of a suspect for an extended period of time without “a judicial determination of probable cause.” In Stack v. Boyle, 342 U. S. 1, 4-5 (1951), we stressed the importance of a person’s right to freedom until proved guilty in construing the Eighth Amendment to proscribe the setting of bail “at a figure higher than an amount reasonably calculated to” assure the presence of the accused at trial. Cf. Baker v. McCollan, 443 U. S. 137, 149-150, 153 (1979) (Stevens, J., dissenting); 12 The phrase “legitimate governmental objective” appears at several points in the opinion of the Court in Bell v. Wolfish, 441 U. S. 520 (1979), e. g., id., at 538-539, and the majority may be relying implicitly on that decision for the standard it applies in these cases. If so, the reliance is misplaced. Wolfish was exclusively concerned with the constitutionality of conditions of pretrial incarceration under circumstances in which the legitimacy of the incarceration itself was undisputed; the Court avoided any discussion of the showing a State must make in order to justify pretrial detention in the first instance. See id., at 533-534, and n. 15. The standard employed by the Court in Wolfish thus has no bearing on the problem before us. 290 OCTOBER TERM, 1983 Marshall, J., dissenting 467 U. S. the supervision and control of an adult who has one’s best interests at heart. And the majority’s depiction of the nature of confinement under §320.5(3)(b) is insupportable on this record. As noted above, the District Court found that secure detention entails incarceration in a facility closely resembling a jail and that pretrial detainees are sometimes mixed with juveniles who have been found to be delinquent. Supra, at 287-288. Evidence adduced at trial reinforces these findings. For example, Judge Quinones, a Family Court Judge with eight years of experience, described the conditions of detention as follows: “Then again, Juvenile Center, as much as we might try, is not the most pleasant place in the world. If you put them in detention, you are liable to be exposing these youngsters to all sorts of things. They are liable to be exposed to assault, they are liable to be exposed to sexual assaults. You are taking the risk of putting them together with a youngster that might be much worse than they, possibly might be, and it might have a bad effect in that respect.” App. 270. Many other observers of the circumstances of juvenile detention in New York have come to similar conclusions.13 13 All of the 34 juveniles in the sample were detained in Spofford Juvenile Center, the detention facility for New York City. Numerous studies of that facility have attested to its unsavory characteristics. See, e. g., Citizens’ Committee for Children of New York, Inc., Juvenile Detention Problems in New York City 3-4 (1970); J. Stone, R. Ruskin, & D. Goff, An Inquiry into the Juvenile Centers Operated by the Office of Probation 25-27, 52-54, 79-80 (1971). Conditions in Spofford have been successfully challenged on constitutional grounds (by a group of inmates of a different type), see Martarella v. Kelley, 359 F. Supp. 478 (SDNY 1973), but nevertheless remain grim, see Mayor’s Task Force on Spofford: First Report v, viii-ix, 20-21 (June 1978). Not surprisingly, a former New York City Deputy Mayor for Criminal Justice has averred that “Spofford is, in many ways, indistinguishable from a prison.” Petitioners’ Exhibit 30, 116 (affidavit of Herbert Sturz, June 29, 1978). SCHALL v. MARTIN 291 253 Marshall, J., dissenting In short, fairly viewed, pretrial detention of a juvenile pursuant to §320.5(3)(b) gives rise to injuries comparable to those associated with imprisonment of an adult. In both situations, the detainee suffers stigmatization and severe limitation of his freedom of movement. See In re Winship, 397 U. S. 358, 367 (1970); In re Gault, 387 U. S., at 27. Indeed, the impressionability of juveniles may make the experience of incarceration more injurious to them than to adults; all too quickly juveniles subjected to preventive detention come to see society at large as hostile and oppressive and to regard themselves as irremediably “delinquent.”14 Such serious injuries to presumptively innocent persons—encompassing the curtailment of their constitutional rights to liberty—can be justified only by a weighty public interest that is substantially advanced by the statute.15 The applicability of the second of the two tests is admitted even by the majority. In Bell v. Wolfish, 441 U. S. 520, 535 14 Cf. Aubry, The Nature, Scope and Significance of Pre-Trial Detention of Juveniles in California, 1 Black L. J. 160, 164 (1971). 15 This standard might be refined in one of two ways. First, it might be argued that, because §320.5(3)(b) impinges upon “[l]iberty from bodily restraint,” which has long been “recognized as the core of the liberty protected by the Due Process Clause,” Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1, 18 (1979) (Powell, J., concurring in part and dissenting in part), the provision can pass constitutional muster only if it promotes a “compelling” government interest. See People ex rel. Waybum v. Schupf, 39 N. Y. 2d 682, 687, 350 N. E. 2d 906, 908 (1976) (requiring a showing of a “compelling State interest” to uphold §320.5(3)(b)); cf. Shapiro v. Thompson, 394 U. S. 618, 634 (1969). Alternatively, it might be argued that the comparatively brief period of incarceration permissible under the provision warrants a slight lowering of the constitutional bar. Applying the principle that the strength of the state interest needed to legitimate a statute depends upon the degree to which the statute encroaches upon fundamental rights, see Williams v. Illinois, 399 U. S. 235, 259-260, 262-263 (1970) (Harlan, J., concurring in result), it might be held that an important—but not quite “compelling”—objective is necessary to sustain § 320.5(3)(b). In the present context, there is no need to choose between these doctrinal options, because §320.5(3)(b) would fail either test. 292 OCTOBER TERM, 1983 Marshall, J., dissenting 467 U. S. (1979), the Court held that an adult may not be punished prior to determination that he is guilty of a crime.16 The majority concedes, as it must, that this principle applies to juveniles. Ante, at 264, 269. Thus, if the only purpose substantially advanced by §320.5(3)(b) is punishment, the provision must be struck down. For related reasons, §320.5(3)(b) cannot satisfy either of the requirements discussed above that together define “fundamental fairness” in the context of pretrial detention. B Appellants and the majority contend that §320.5(3)(b) advances a pair of intertwined government objectives: “protecting the community from crime,” ante, at 264, and “protecting a juvenile from the consequences of his criminal activity,” ante, at 266. More specifically, the majority argues that detaining a juvenile for a period of up to 17 days prior to his trial has two desirable effects: it protects society at large from the crimes he might have committed during that period if released; and it protects the juvenile himself “both from potential physical injury which may be suffered when a victim fights back or a policeman attempts to make an arrest and from the downward spiral of criminal activity into which peer pressure may lead the child.” Ante, at 264-266. Appellees and some amici argue that public purposes of this sort can never justify incarceration of a person who has not been adjudicated guilty of a crime, at least in the absence of a determination that there exists probable cause to believe he committed a criminal offense.17 We need not reach that 16 See also Ingraham v. Wright, 430 U. S. 651, 671-672, and n. 40, 673-674 (1977); Gregory v. Chicago, 394 U. S. Ill, 112 (1969); Thompson v. Louisville, 362 U. S. 199, 206 (1960). 17 Cf. Sellers v. United States, 89 S. Ct. 36, 38, 21 L. Ed. 2d 64, 67 (1968) (Black, J., in chambers) (questioning whether a defendant’s dangerousness can ever justify denial of bail). SCHALL v. MARTIN 293 253 Marshall, J., dissenting categorial argument in these cases because, even if the purposes identified by the majority are conceded to be compelling, they are not sufficiently promoted by detention pursuant to §320.5(3)(b) to justify the concomitant impairment of the juveniles’ liberty interests.18 To state the case more precisely, two circumstances in combination render §320.5(3)(b) invalid in toto: in the large majority of cases in which the provision is invoked, its asserted objectives are either not advanced at all or are only minimally promoted; and, as the provision is written and administered by the state courts, the cases in which its asserted ends are significantly advanced cannot practicably be distinguished from the cases in which they are not. 1 Both of the courts below concluded that only occasionally and accidentally does pretrial detention of a juvenile under §320.5(3)(b) prevent the commission of a crime. Three subsidiary findings undergird that conclusion. First, Family Court judges are incapable of determining which of the juveniles who appear before them would commit offenses before their trials if left at large and which would not. In part, this incapacity derives from the limitations of current knowledge concerning the dynamics of human behavior. On the basis of evidence adduced at trial, supplemented by a thorough review of the secondary literature, see 513 F. Supp., at 708-712, and nn. 31-32, the District Court found that “no diagnostic tools have as yet been devised which enable even the most highly trained criminologists to predict reliably which juveniles will engage in violent crime.” Id., at 708. The evidence supportive of this finding is overwhelm 18 An additional reason for not reaching appellees’ categorical objection to the purposes relied upon by the State is that the Court of Appeals did not pass upon the validity of those objectives. See 689 F. 2d, at 372. We are generally chary of deciding important constitutional questions not reached by a lower court. 294 OCTOBER TERM, 1983 Marshall, J., dissenting 467 U. S. ing.19 An independent impediment to identification of the defendants who would misbehave if released is the paucity of data available at an initial appearance. The judge must make his decision whether to detain a juvenile on the basis of a set of allegations regarding the child’s alleged offense, a cursory review of his background and criminal record, and the recommendation of a probation officer who, in the typical case, has seen the child only once. Id., at 712. In view of this scarcity of relevant information, the District Court credited the testimony of appellees’ expert witness, who “stated that he would be surprised if recommendations based on intake interviews were better than chance and assessed the judge’s subjective prognosis about the probability of future crime as only 4% better than chance—virtually wholly unpredictable.” Id., at 708.20 19 See, e. g., American Psychiatric Association, Clinical Aspects of the Violent Individual 27-28 (1974); Cocozza & Steadman, The Failure of Psychiatric Predictions of Dangerousness: Clear and Convincing Evidence, 29 Rutgers L. Rev. 1084, 1094-1101 (1976); Diamond, The Psychiatric Prediction of Dangerousness, 123 U. Pa. L. Rev. 439 (1974); Ennis & Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins In the Courtroom, 62 Calif. L. Rev. 693 (1974); Schlesinger, The Prediction of Dangerousness in Juveniles: A Replication, 24 Crime & Delinquency 40, 47 (1978); Steadman & Cocozza, Psychiatry, Dangerousness and the Repetitively Violent Offender, 69 J. Crim. L. & C. 226, 229-231 (1978); Wenk, Robison, & Smith, Can Violence Be Predicted?, 18 Crime & Delinquency 393, 401 (1972); Preventive Detention: An Empirical Analysis, 6 Harv. Civ. Rights—Civ. Lib. L. Rev. 289 (1971). 20 The majority brushes aside the District Court’s findings on this issue with the remark that “a prediction of future criminal conduct. . . forms an important element in many decisions, and we have specifically rejected the contention . . . ‘that it is impossible to predict future behavior and that the question is so vague as to be meaningless.’” Ante, at 278-279 (footnote and citation omitted). Whatever the merits of the decisions upon which the majority relies, but cf., e. g., Barefoot v. Estelle, 463 U. S. 880, 909 (1983) (Marshall, J., dissenting), they do not control the problem before us. In each of the cases in which the Court has countenanced reliance upon a prediction of future conduct in a decisionmaking process impinging upon life or liberty, the affected person had already been convicted of a crime. See Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1 (1979) SCHALL v. MARTIN 295 253 Marshall, J., dissenting Second, §320.5(3)(b) is not limited to classes of juveniles whose past conduct suggests that they are substantially more likely than average juveniles to misbehave in the immediate future. The provision authorizes the detention of persons arrested for trivial offenses21 and persons without any prior contacts with juvenile court. Even a finding that there is probable cause to believe a juvenile committed the offense with which he was charged is not a prerequisite to his detention. See supra, at 285, and n. G.22 (grant of parole); Jurek v. Texas, 428 U. S. 262 (1976) (death sentence); Morrissey n. Brewer, 408 U. S. 471 (1972) (parole revocation). The constitutional limitations upon the kinds of factors that may be relied on in making such decisions are significantly looser than those upon decisionmaking processes that abridge the liberty of presumptively innocent persons. Cf. United States v. Tucker, 404 U. S. 443, 446 (1972) (“[A] trial judge in the federal judicial system generally has wide discretion in determining what sentence to impose. . . . [BJefore making that determination, a judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come”). 21 For example, Tyrone Parson, aged 15, one of the members of the sample, was arrested for enticing others to play three-card monte. Petitioners’ Exhibit 18b. After being detained for five days under §320.5(3)(b), the petition against him was dismissed on the ground that “the offense alleged did not come within the provisions of the penal law.” 513 F. Supp., at 698-699. In contrast to the breadth of the coverage of the Family Court Act, the District of Columbia adult preventive-detention statute that was upheld in United States v. Edwards, 430 A. 2d 1321 (D. C. 1981), cert, denied, 455 U. S. 1022 (1982), authorizes detention only of persons charged with one of a prescribed set of “dangerous crime[s]” or “crime[s] of violence.” D. C. Code §§23-1322(a)(l), (2) (1981). Prediction whether a given person will commit a crime in the future is especially difficult when he has committed only minor crimes in the past. Cf. BaldasarN. Illinois, 446 U. S. 222, 231 (1980) (Powell, J., dissenting) (“No court can predict with confidence whether a misdemeanor defendant is likely to become a recidivist”). 22 By contrast, under the District of Columbia statute, see n. 21, supra, the judge is obliged before ordering detention to find, inter alia, a “substantial probability” that the defendant committed the serious crime for which he was arrested. D. C. Code § 23-1322(b)(2)(C) (1981). 296 OCTOBER TERM, 1983 Marshall, J., dissenting 467 U. S. Third, the courts below concluded that circumstances surrounding most of the cases in which §320.5(3)(b) has been invoked strongly suggest that the detainee would not have committed a crime during the period before his trial if he had been released. In a significant proportion of the cases, the juvenile had been released after his arrest and had not committed any reported crimes while at large, see supra, at 287; it is not apparent why a juvenile would be more likely to misbehave between his initial appearance and his trial than between his arrest and initial appearance. Even more telling is the fact that “the vast majority” of persons detained under §320.5(3)(b) are released either before or immediately after their trials. 698 F. 2d, at 369; see 513 F. Supp., at 705. The inference is powerful that most detainees, when examined more carefully than at their initial appearances, are deemed insufficiently dangerous to warrant further incarceration.23 The rarity with which invocation of §320.5(3)(b) results in detention of a juvenile who otherwise would have committed a crime fatally undercuts the two public purposes assigned to the statute by the State and the majority. The argument that §320.5(3)(b) serves “the State’s ‘parens patriae interest in preserving and promoting the welfare of the child,”’ ante, at 265 (citation omitted), now appears particularly hollow. Most juveniles detained pursuant to the provision are not 23 Both courts below made this inference. See 689 F. 2d, at 372; 513 F. Supp., at 705. Indeed, the New York Court of Appeals, in upholding the statute, did not disagree with this explanation of the incidence of its application. People ex rel. Waybum v. Schupf, 39 N. Y. 2d, at 690, 350 N. E. 2d, at 910. Release (before or after trial) of some of the juveniles detained under §320.5(3)(b) may well be due to a different factor: the evidence against them may be insufficient to support a finding of guilt. It is conceivable that some of those persons are so crime-prone that they would have committed an offense if not detained. But even the majority does not suggest that persons who could not be convicted of any crimes may nevertheless be imprisoned for the protection of themselves and the public. SCHALL v. MARTIN 297 253 Marshall, J., dissenting benefited thereby, because they would not have committed crimes if left to their own devices (and thus would not have been exposed to the risk of physical injury or the perils of the cycle of recidivism, see ante, at 266). On the contrary, these juveniles suffer several serious harms: deprivation of liberty and stigmatization as “delinquent” or “dangerous,” as well as impairment of their ability to prepare their legal defenses.24 The benefits even to those few juveniles who would have committed crimes if released are not unalloyed; the gains to them are partially offset by the aforementioned injuries. In view of this configuration of benefits and harms, it is not surprising that Judge Quinones repudiated the suggestion that detention under §320.5(3)(b) serves the interests of the detainees. App. 269-270. The argument that §320.5(3)(b) protects the welfare of the community fares little better. Certainly the public reaps no benefit from incarceration of the majority of the detainees who would not have committed any crimes had they been released. Prevention of the minor offenses that would have been committed by a small proportion of the persons detained confers only a slight benefit on the community.25 Only in occasional cases does incarceration of a juvenile pending his trial serve to prevent a crime of violence and thereby significantly promote the public interest. Such an infrequent and haphazard gain is insufficient to justify curtailment of the lib 24 See testimony of Steven Hiltz, App. 130-134 (describing the detrimental effects of pretrial detention of a juvenile upon the preparation and presentation of his defense); cf. Barker v. Wingo, 407 U. S. 514, 533 (1972); Bitter v. United States, 389 U. S. 15, 16-17 (1967) (per curiam); Stack v. Boyle, 342 U. S., at 8; Miller, Preventive Detention—A Guide to the Eradication of Individual Rights, 16 How. L. J. 1, 15 (1970). 26 Cf. Tribe, An Ounce of Detention: Preventive Justice in the World of John Mitchell, 56 Va. L. Rev. 371, 381 (1970) (“[Under a statute proposed by the Attorney General,] trivial property offenses may be deemed sufficiently threatening to warrant preventive imprisonment. No tenable concept of due process could condone a balance that gives so little weight to the accused’s interest in pretrial liberty”). 298 OCTOBER TERM, 1983 Marshall, J., dissenting 467 U. S. erty interests of all the presumptively innocent juveniles who would have obeyed the law pending their trials had they been given the chance.26 2 The majority seeks to deflect appellees’ attack on the constitutionality of §320.5(3)(b) by contending that they have framed their argument too broadly. It is possible, the majority acknowledges, that “in some circumstances detention of a juvenile [pursuant to §320.5(3)(b)] would not pass constitutional muster. But the validity of those detentions must be determined on a case-by-case basis.” Ante, at 273; see ante, at 268-269, n. 18. The majority thus implies that, even if the Due Process Clause is violated by most detentions under §320.5(3)(b) because those detainees would not have committed crimes if released, the statute nevertheless is not invalid “on its face” because detention of those persons who would have committed a serious crime comports with the Constitution. Separation of the properly detained juveniles from the improperly detained juveniles must be achieved through “case-by-case” adjudication. There are some obvious practical impediments to adoption of the majority’s proposal. Because a juvenile may not be incarcerated under §320.5(3)(b) for more than 17 days, it 26 Some amici contend that a preventive-detention statute that, unlike §320.5(3)(b), covered only specific categories of juveniles and embodied stringent procedural safeguards would result in incarceration only of juveniles very likely to commit crimes of violence in the near future. E. g., Brief for American Bar Association as Amicus Curiae 9-14. It could be argued that, even though such a statute would unavoidably result in detention of some juveniles who would not have committed any offenses if released (because of the impossibility of reliably predicting the behavior of individual persons, see supra, at 293-294), the gains consequent upon the detention of the large proportion who would have committed crimes would be sufficient to justify the injuries to the other detainees. To decide the cases before us, we need not consider either the feasibility of such a scheme or its constitutionality. SCHALL v. MARTIN 299 253 Marshall, J., dissenting would be impracticable for a particular detainee to secure his freedom by challenging the constitutional basis of his detention; by the time the suit could be considered, it would have been rendered moot by the juvenile’s release or long-term detention pursuant to a delinquency adjudication.27 Nor could an individual detainee avoid the problem of mootness by filing a suit for damages or for injunctive relief. This Court’s declaration that §320.5(3)(b) is not unconstitutional on its face would almost certainly preclude a finding that detention of a juvenile pursuant to the statute violated any clearly established constitutional rights; in the absence of such a finding all state officials would be immune from liability in damages, see Harlow v. Fitzgerald, 457 U. S. 800 (1982). And, under current doctrine pertaining to the standing of an individual victim of allegedly unconstitutional conduct to obtain an injunction against repetition of that behavior, it is far from clear that an individual detainee would be able to obtain 27 The District Court, whose knowledge of New York procedural law surely exceeds ours, concluded that “[t]he short span of pretrial detention makes effective review impossible.” 513 F. Supp., at 708, n. 29. The majority dismisses this finding, along with a comparable finding by the Court of Appeals, see 689 F. 2d, at 373, as “mistaken.” Ante, at 280. But neither of the circumstances relied upon by the majority supports its confident judgment on this point. That the New York courts suspended their usual rules of mootness in order to consider an attack on the constitutionality of the statute as a whole, see People ex rel. Waybum v. Schupf, 39 N. Y. 2d, at 686, 350 N. E. 2d, at 907-908, in no way suggests that they would be willing to do so if an individual detainee challenged the constitutionality of § 320.5(3)(b) as applied to him. The majority cites one case in which a detainee did obtain his release by securing a writ of habeas corpus. However, that case involved a juvenile who was not given a probable-cause hearing within six days of his detention—a patent violation of the state statute. See 513 F. Supp., at 708. That a writ of habeas corpus could be obtained on short notice to remedy a glaring statutory violation provides no support for the majority’s suggestion that individual detainees could effectively petition for release by challenging the constitutionality of their detentions. 300 OCTOBER TERM, 1983 Marshall, J., dissenting 467 U. S. an equitable remedy. Compare INS v. Delgado, 466 U. S. 210, 217, n. 4 (1984), with Los Angeles v. Lyons, 461 U. S. 95, 105-106 (1983). But even if these practical difficulties could be surmounted, the majority’s proposal would be inadequate. Precisely because of the unreliability of any determination whether a particular juvenile is likely to commit a crime between his arrest and trial, see supra, at 293-294, no individual detainee would be able to demonstrate that he would have abided by the law had he been released. In other words, no configuration of circumstances would enable a juvenile to establish that he fell into the category of persons unconstitutionally detained rather than the category constitutionally detained.28 Thus, to protect the rights of the majority of juveniles whose incarceration advances no legitimate state interest, §320.5(3)(b) must be held unconstitutional “on its face.” C The findings reviewed in the preceding section lend credence to the conclusion reached by the courts below: §320.5(3)(b) “is utilized principally, not for preventive purposes, but to impose punishment for unadjudicated criminal acts.” 689 F. 2d, at 372; see 513 F. Supp., at 715-717. The majority contends that, of the many factors we have considered in trying to determine whether a particular sanction constitutes “punishment,” see Kennedy n. Mendoza-Martinez, 372 U. S. 144, 168-169 (1963), the most useful are “whether an alternative purpose to which [the sanction] may 28 This problem is exacerbated by the fact that Family Court judges, when making findings justifying a detention pursuant to § 320.5(3)(b), do not specify whether there is a risk that the juvenile would commit a serious crime or whether there is a risk that he would commit a petty offense. A finding of the latter sort should not be sufficient under the Due Process Clause to justify a juvenile’s detention. See supra, at 297-298, and n. 25. But a particular detainee has no way of ascertaining the grounds for his incarceration. SCHALL v. MARTIN 301 253 Marshall, J., dissenting rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned,” ibid, (footnotes omitted). See ante, at 269. Assuming, arguendo, that this test is appropriate, but cf. Bell v. Wolfish, 441 U. S., at 564-565 (Marshall, J., dissenting), it requires affirmance in these cases. The alternative purpose assigned by the State to §320.5(3)(b) is the prevention of crime by the detained juveniles. But, as has been shown, that objective is advanced at best sporadically by the provision. Moreover, §320.5(3)(b) frequently is invoked under circumstances in which it is extremely unlikely that the juvenile in question would commit a crime while awaiting trial. The most striking of these cases involve juveniles who have been at large without mishap for a substantial period of time prior to their initial appearances, see supra, at 287, and detainees who are adjudged delinquent and are nevertheless released into the community. In short, §320.5(3)(b) as administered by the New York courts surely “appears excessive in relation to” the putatively legitimate objectives assigned to it. The inference that §320.5(3)(b) is punitive in nature is supported by additional materials in the record. For example, Judge Quinones and even appellants’ counsel acknowledged that one of the reasons juveniles detained pursuant to §320.5(3)(b) usually are released after the determination of their guilt is that the judge decides that their pretrial detention constitutes sufficient punishment. 689 F. 2d, at 370-371, and nn. 27-28. Another Family Court Judge admitted using “preventive detention” to punish one of the juveniles in the sample. 513 F. Supp., at 708.29 29 See transcript of the initial appearance of Ramon Ramos, #1356/80, Judge Heller presiding, Petitioners’ Exhibit 42, p. 11: “This business now of being able to get guns, is now completely out of proportion. We are living in a jungle. We are living in a jungle, and it is time that these youths that are brought before the Court, know that they 302 OCTOBER TERM, 1983 Marshall, J., dissenting 467 U. S. In summary, application of the litmus test the Court recently has used to identify punitive sanctions supports the finding of the lower courts that preventive detention under §320.5(3)(b) constitutes punishment. Because punishment of juveniles before adjudication of their guilt violates the Due Process Clause, see supra, at 291-292, the provision cannot stand. Ill If the record did not establish the impossibility, on the basis of the evidence available to a Family Court judge at a §320.5(3)(b) hearing, of reliably predicting whether a given juvenile would commit a crime before his trial, and if the purposes relied upon by the State were promoted sufficiently to justify the deprivations of liberty effected by the provision, I would nevertheless still strike down §320.5(3)(b) because of the absence of procedural safeguards in the provision. As Judge Newman, concurring in the Court of Appeals observed, “New York’s statute is unconstitutional because it permits liberty to be denied, prior to adjudication of guilt, in the exercise of unfettered discretion as to an issue of considerable uncertainty—likelihood of future criminal behavior.” 689 F. 2d, at 375. Appellees point out that §320.5(3)(b) lacks two crucial procedural constraints. First, a New York Family Court judge is given no guidance regarding what kinds of evidence he should consider or what weight he should accord different sorts of material in deciding whether to detain a juvenile.30 For example, there is no requirement in the statute that the are in a Court, and that if these allegations are true, that they are going to pay the penalty. “As for the reasons I just state[d] on the record, ... I am remand[ing] the respondent to the Commissioner of Juvenile Justice, secure detention.” 30 The absence of any limitations on the sorts of reasons that may support a determination that a child is likely to commit a crime if released means that the statutory requirement that the judge state “reasons” on the record, see ante, at 276, does not meaningfully constrain the decisionmaking process. SCHALL v. MARTIN 303 253 Marshall, J., dissenting judge take into account the juvenile’s background or current living situation. Nor is a judge obliged to attach significance to the nature of a juvenile’s criminal record or the severity of the crime for which he was arrested.31 Second, § 320.5(3)(b) does not specify how likely it must be that a juvenile will commit a crime before his trial to warrant his detention. The provision indicates only that there must be a “serious risk” that he will commit an offense and does not prescribe the standard of proof that should govern the judge’s determination of that issue.32 Not surprisingly, in view of the lack of directions provided by the statute, different judges have adopted different ways of estimating the chances whether a juvenile will misbehave in the near future. “Each judge follows his own individual approach to [the detention] determination.” 513 F. Supp., at 702; see App. 265 (testimony of Judge Quinones). This discretion exercised by Family Court judges in making detention decisions gives rise to two related constitutional problems. First, it creates an excessive risk that juveniles will be detained “erroneously”—i. e., under circumstances in which no public interest would be served by their incarceration. Second, it fosters arbitrariness and inequality in a decisionmaking process that impinges upon fundamental rights. A One of the purposes of imposing procedural constraints on decisions affecting life, liberty, or property is to reduce the 31 See 513 F. Supp., at 713: “Whether the juvenile was a first offender with no prior conduct, whether the court was advised that the juvenile was an obedient son or was needed at home, whether probation intake recommended parole, the case histories in this record disclose that it was not unusual for the court to discount these considerations and order remand based on a 5 to 15 minute evaluation.” 32 Cf. Addington v. Texas, 441 U. S. 418, 431-433 (1979) (“clear and convincing” proof constitutionally required to justify civil commitment to mental hospital). 304 OCTOBER TERM, 1983 Marshall, J., dissenting 467 U. S. incidence of error. See Fuentes v. Shevin, 407 U. S. 67, 80-81 (1972). In Mathews v. Eldridge, 424 U. S. 319 (1976), the Court identified a complex of considerations that has proved helpful in determining what protections are constitutionally required in particular contexts to achieve that end: “[Identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Id., at 335. As Judge Newman recognized, 689 F. 2d, at 375-376, a review of these three factors in the context of New York’s preventive-detention scheme compels the conclusion that the Due Process Clause is violated by §320.5(3)(b) in its present form. First, the private interest affected by a decision to detain a juvenile is personal liberty. Unnecessary abridgment of such a fundamental right, see supra, at 288, should be avoided if at all possible. Second, there can be no dispute that there is a serious risk under the present statute that a juvenile will be detained erroneously—i. e., despite the fact that he would not commit a crime if released. The findings of fact reviewed in the preceding sections make it apparent that the vast majority of detentions pursuant to §320.5(3)(b) advance no state interest; only rarely does the statute operate to prevent crime. See supra, at 297-298. This high incidence of demonstrated error should induce a reviewing court to exercise utmost care in ensuring that no procedures could be devised that would improve the accuracy of the decisionmaking process. Opportunities for improvement in the extant regime are apparent SCHALL v. MARTIN 305 253 Marshall, J., dissenting even to a casual observer. Most obviously, some measure of guidance to Family Court judges regarding the evidence they should consider and the standard of proof they should use in making their determinations would surely contribute to the quality of their detention determinations.33 The majority purports to see no value in such additional safeguards, contending that activity of estimating the likelihood that a given juvenile will commit a crime in the near future involves subtle assessment of a host of variables, the precise weight of which cannot be determined in advance. Ante, at 279. A review of the hearings that resulted in the detention of the juveniles included in the sample of 34 cases reveals the majority’s depiction of the decisionmaking process to be hopelessly idealized. For example, the operative portion of the initial appearance of Tyrone Parson, the three-card monte player,34 consisted of the following: “COURT OFFICER: Will you identify yourself. “TYRONE PARSON: Tyrone Parson, Age 15. “THE COURT: Miss Brown, how many times has Tyrone been known to the Court? “MISS BROWN: Seven times. 33 Judge Newman, concurring below, pointed to three other protections lacking in § 320.5(3)(b): “the statute places no limits on the crimes for which the person subject to detention has been arrested . . . , the judge ordering detention is not required to make any evaluation of the degree of likelihood that the person committed the crime of which he is accused[,]. . . [and] the statute places no limits on the type of crimes that the judge believes the detained juvenile might commit if released.” 689 F. 2d, at 377. In my view, the absence of these constraints is most relevant to the question whether the ends served by the statute can justify its broad reach, see Part II-B, supra. However, as Judge Newman observed, they could also be considered procedural flaws. Certainly, a narrowing of the categories of persons covered by § 320.5(3)(b), along the lines sketched by Judge Newman, would reduce the incidence of error in the application of the provision. 34 See n. 21, supra. 306 OCTOBER TERM, 1983 Marshall, J., dissenting 467 U. S. “THE COURT: Remand the respondent.” Petitioners’ Exhibit 18a.35 This kind of parody of reasoned decisionmaking would be less likely to occur if judges were given more specific and mandatory instructions regarding the information they should consider and the manner in which they should assess it. Third and finally, the imposition of such constraints on the deliberations of the Family Court judges would have no adverse effect on the State’s interest in detaining dangerous juveniles and would give rise to insubstantial administrative burdens. For example, a simple directive to Family Court judges to state on the record the significance they give to the seriousness of the offense of which a juvenile is accused and to the nature of the juvenile’s background would contribute materially to the quality of the decisionmaking process without significantly increasing the duration of initial appearances. In summary, the three factors enumerated in Mathews in combination incline overwhelmingly in favor of imposition of more stringent constraints on detention determinations under §320.5(3)(b). Especially in view of the impracticability of correcting erroneous decisions through judicial review, see supra, at 298-300, the absence of meaningful procedural safeguards in the provision renders it invalid. See Santosky v. Kramer, 455 U. S. 745, 757, and n. 9 (1982). B A principle underlying many of our prior decisions in various doctrinal settings is that government officials may not be accorded unfettered discretion in making decisions that 36 Parson’s case is not unique. The hearings accorded Juan Santiago and Daniel Nelson, for example, though somewhat longer in duration, were nearly as cavalier and undiscriminating. See Petitioners’ Exhibits 13a, 22a. SCHALL v. MARTIN 307 253 Marshall, J., dissenting impinge upon fundamental rights. Two concerns underlie this principle: excessive discretion fosters inequality in the distribution of entitlements and harms, inequality which is especially troublesome when those benefits and burdens are great; and discretion can mask the use by officials of illegitimate criteria in allocating important goods and rights. So, in striking down on vagueness grounds a vagrancy ordinance, we emphasized the “unfettered discretion it places in the hands of the . . . police.” Papachristou v. City of Jacksonville, 405 U. S. 156, 168 (1972). Such flexibility was deemed constitutionally offensive because it “permits and encourages an arbitrary and discriminatory enforcement of the law.” Id., at 170. Partly for similar reasons, we have consistently held violative of the First Amendment ordinances which make the ability to engage in constitutionally protected speech “contingent upon the uncontrolled will of an official— as by requiring a permit or license which may be granted or withheld in the discretion of such official.” Staub v. City of Baxley, 355 U. S. 313, 322 (1958); accord, Shuttlesworth v. City of Birmingham, 394 U. S. 147, 151, 153 (1969). Analogous considerations inform our understanding of the dictates of the Due Process Clause. Concurring in the judgment in Zablocki v. Redhail, 434 U. S. 374 (1978), striking down a statute that conditioned the right to marry upon the satisfaction of child-support obligations, Justice Powell aptly observed: “Quite apart from any impact on the truly indigent, the statute appears to ‘confer upon [the judge] a license for arbitrary procedure,’ in the determination of whether an applicant’s children are ‘likely thereafter to become public charges.’ A serious question of procedural due process is raised by this feature of standardless discretion, particularly in light of the hazards of prediction in this area.” Id., at 402, n. 4 (quoting Kent v. United States, 383 U. S., at 553). 308 OCTOBER TERM, 1983 Marshall, J., dissenting 467 U. S. The concerns that powered these decisions are strongly implicated by New York’s preventive-detention scheme. The effect of the lack of procedural safeguards constraining detention decisions under § 320.5(3)(b) is that the liberty of a juvenile arrested even for a petty crime is dependent upon the “caprice” of a Family Court judge. See 513 F. Supp., at 707. The absence of meaningful guidelines creates opportunities for judges to use illegitimate criteria when deciding whether juveniles should be incarcerated pending their trials—for example, to detain children for the express purpose of punishing them.36 Even the judges who strive conscientiously to apply the law have little choice but to assess juveniles’ dangerousness on the basis of whatever standards they deem appropriate.37 The resultant variation in detention decisions gives rise to a level of inequality in the deprivation of a fundamental right too great to be countenanced under the Constitution. IV The majority acknowledges—indeed, founds much of its argument upon—the principle that a State has both the power and the responsibility to protect the interests of the children within its jurisdiction. See Santosky v. Kramer, supra, at 766. Yet the majority today upholds a statute whose net impact on the juveniles who come within its purview is overwhelmingly detrimental. Most persons detained under the provision reap no benefit and suffer serious injuries thereby. The welfare of only a minority of the detainees is even arguably enhanced. The inequity of this regime, combined with 36 See n. 29, supra. ” See 513 F. Supp., at 708: “It is clear that the judge decides on pretrial detention for a variety of reasons—as a means of protecting the community, as the policy of the judge to remand, as an express punitive device, or because of the serious nature of the charge[,] among others” (citations omitted). 309 253 SCHALL v. MARTIN Marshall, J., dissenting the arbitrariness with which it is administered, is bound to disillusion its victims regarding the virtues of our system of criminal justice. I can see—and the majority has pointed to—no public purpose advanced by the statute sufficient to justify the harm it works. I respectfully dissent. 310 OCTOBER TERM, 1983 Syllabus 467 U. S. COLORADO v. NEW MEXICO et al. ON EXCEPTIONS TO REPORT OF SPECIAL MASTER No. 80, Orig. Argued January 9, 1984—Decided June 4, 1984 In this original action, Colorado seeks an equitable apportionment of the waters of the Vermejo River, which originates in Colorado and flows into New Mexico. Historically, all of the river’s waters have been used exclusively by farm and industrial users in New Mexico. After a trial at which both States presented extensive evidence, the Special Master recommended that Colorado be allowed to divert 4,000 acre-feet of water per year. His recommendation rested on the grounds that New Mexico could compensate for some or all of the proposed Colorado diversion through reasonable water conservation measures, and that the injury, if any, to New Mexico would be outweighed by the benefit to Colorado from the diversion. In considering New Mexico’s exceptions to the Master’s report, this Court held, inter alia, that the Master properly did not focus exclusively on the priority of uses along the river, and that other factors—such as waste, availability of reasonable conservation measures, and the balance of benefit and harm from diversion—could be considered in the apportionment calculus. 459 U. S. 176. The case was remanded to the Master for additional specific findings to assist the Court in assessing whether the river’s waters could reasonably be made available for diversion and in balancing the benefit and harm from diversion. On the basis of the evidence previously received, the Master then developed additional factual findings and reaffirmed his original recommendation. New Mexico again filed exceptions to the Master’s report. Held: 1. In this action for equitable apportionment, Colorado’s proof is to be judged by a clear-and-convincing-evidence standard. Requiring Colorado to present such evidence in support of its proposed diversion is necessary to appropriately balance the unique interests involved in water rights disputes between sovereigns. The standard reflects this Court’s long-held view that a proposed diverter should bear most, though not all, of the risks of erroneous decision. In addition, the standard accommodates society’s competing interests in increasing the stability of property rights and in putting resources to their most efficient uses. Pp. 315-317. 2. Colorado has not met its burden of proving that a diversion should be permitted. Pp. 317-323. (a) Colorado has not demonstrated, by clear and convincing evidence, that reasonable conservation measures could compensate for COLORADO v. NEW MEXICO 311 310 Syllabus some or all of the proposed diversion. For example, though Colorado alleged that New Mexico could improve its administration of water supplies, it did not point to specific measures New Mexico could take to conserve water. Society’s interest in minimizing erroneous decisions in equitable apportionment cases requires that hard facts, not suppositions or opinions, be the basis for interstate diversions. Moreover, there is no evidence that Colorado has undertaken reasonable steps to minimize the amount of the diversion that will be required. Pp. 317-321. (b) Nor has Colorado sustained its burden of showing that any injury to New Mexico would be outweighed by the benefits to Colorado from the proposed diversion. Colorado has not committed itself to any specific long-term use for which future benefits can be studied and predicted. By contrast, New Mexico has attempted to identify the harms that would result from the proposed diversion. Asking for absolute precision in forecasts about the benefits and harms of a diversion would be unrealistic, but a State proposing a diversion must conceive and implement some type of long-range planning and analysis of the diversion it proposes, thereby reducing the uncertainties with which equitable apportionment judgments are made. Pp. 321-323. /- (c) The mere fact that the Vermejo River originates in Colorado does not automatically entitle Colorado to a share of the river’s waters. Equitable apportionment of appropriated water rights turns on the benefits, harms, and efficiencies of competing uses, and thus the source of the river’s waters is essentially irrelevant to the adjudication of these sovereigns’ competing claims. P. 323. Exceptions sustained and case dismissed. O’Connor, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, White, Marshall, Blackmun, Powell, and Rehnquist, JJ., joined. Stevens, J., filed a dissenting opinion, post, p. 324. Richard A. Simms argued the cause for defendants. With him on the briefs were Paul G. Bardacke, Attorney General of New Mexico, pro se, and Peter T. White and Jay F. Stein, Special Assistant Attorneys General. Robert F. Welborn, Special Assistant Attorney General of Colorado, argued the cause for plaintiff. With him on the brief were Duane Woodard, Attorney General, and William A. Paddock, First Assistant Attorney General. 312 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. Justice O’Connor delivered the opinion of the Court. In this original action, the State of Colorado seeks an equitable apportionment of the waters of the Vermejo River, an interstate river fully appropriated by users in the State of New Mexico. A Special Master, appointed by this Court, initially recommended that Colorado be permitted a diversion of 4,000 acre-feet per year. Last Term, we remanded for additional factual findings on five specific issues. 459 U. S. 176 (1982). The case is before us again on New Mexico’s exceptions to these additional findings. We now conclude that Colorado has not demonstrated by clear and convincing evidence that a diversion should be permitted. Accordingly, we sustain New Mexico’s exceptions and dismiss the case. I The facts of this litigation were set forth in detail in our opinion last Term, see id., at 178-183, and we need recount them here only briefly. The Vermejo River is a small, non-navigable stream, originating in the snow belt of the Rocky Mountains. The river flows southeasterly into New Mexico for roughly 55 miles before feeding into the Canadian River. Though it begins in Colorado, the major portion of the Vermejo River is located in New Mexico. Its waters historically have been used exclusively by farm and industrial users in that State. In 1975, however, a Colorado corporation, Colorado Fuel and Iron Steel Corp. (C. F. & I.), proposed to divert water from the Vermejo River for industrial and other uses in Colorado. As a consequence, several of the major New Mexico users sought and obtained an injunction against the proposed diversion. The State of Colorado, in turn, filed a motion for leave to file an original complaint with this Court, seeking an equitable apportionment of the Vermejo River’s waters. We granted Colorado its leave to file, 439 U. S. 975 (1978), and the Court of Appeals for the Tenth Circuit stayed C. F. & I.’s appeal pending our resolution of the equitable apportionment issue. COLORADO v. NEW MEXICO 313 310 Opinion of the Court We then appointed a Special Master, 441 U. S. 902 (1979), the Honorable Ewing T. Kerr, Senior Judge of the United States District Court for the District of Wyoming, who held a lengthy trial at which both States presented extensive evidence. On the basis of this evidence, the Master recommended that Colorado be allowed to divert 4,000 acre-feet of water per year. His recommendation rested on two grounds: first, that New Mexico could compensate for some or all of the Colorado diversion through reasonable water conservation measures; and second, that the injury, if any, to New Mexico would be outweighed by the benefit to Colorado from the diversion. New Mexico took exceptions, both legal and factual, to the Master’s recommendation. As to the Master’s view of the law of equitable apportionment, New Mexico contended that the Master erred in not focusing exclusively on the priority of uses along the Vermejo River. 459 U. S., at 181-182. The Court rejected that contention: “We recognize that the equities supporting the protection of existing economies will usually be compelling. . . . Under some circumstances, however, the countervailing equities supporting a diversion for future use in one State may justify the detriment to existing users in another State. This may be the case, for example, where the State seeking a diversion demonstrates by clear and convincing evidence that the benefits of the diversion substantially outweigh the harm that might result. In the determination of whether the State proposing the diversion has carried this burden, an important consideration is whether the existing users could offset the diversion by reasonable conservation measures . . . .” Id., at 187-188 (footnote omitted). In short, though the equities presumptively supported protection of the established senior uses, the Court concluded that other factors—such as waste, availability of reasonable 314 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. conservation measures, and the balance of benefit and harm from diversion—could be considered in the apportionment calculus. Ibid. New Mexico also took issue with the factual predicates of the Master’s recommendation. Specifically, it contended that Colorado had failed to prove by clear and convincing evidence that New Mexico currently uses more than its equitable share of the Vermejo River’s waters. On this matter, we found the Master’s report unclear and determined that a remand would be appropriate. To help this Court assess whether Vermejo River water could reasonably be made available for diversion, the Master was instructed to make specific findings concerning: “(1) the existing uses of water from the Vermejo River, and the extent to which present levels of use reflect current or historical water shortages or the failure of existing users to develop their uses diligently; “(2) the available supply of water from the Vermejo River, accounting for factors such as variations in stream flow, the needs of current users for a continuous supply, the possibilities of equalizing and enhancing the water supply through water storage and conservation, and the availability of substitute sources of water to relieve the demand for water from the Vermejo River; [and] “(3) the extent to which reasonable conservation measures in both States might eliminate waste and inefficiency in the use of water from the Vermejo River[.]” Id., at 189-190. Then, to assist this Court in balancing the benefit and harm from diversion, the Master was asked to make findings concerning: “(4) the precise nature of the proposed interim and ultimate use in Colorado of water from the Vermejo River, COLORADO v. NEW MEXICO 315 310 Opinion of the Court and the benefits that would result from a diversion to Colorado; [and] “(5) the injury, if any, that New Mexico would likely suffer as a result of any such diversion, taking into account the extent to which reasonable conservation measures could offset the diversion.” Id., at 190 (footnote omitted). Finally, the Court authorized the Master to consider any other relevant factors, to gather any additional evidence necessary to making the requested findings, and to offer another—although not necessarily different—recommendation. Id., at 190, and ri. 14. On remand, New Mexico filed a motion to submit new evidence. Colorado opposed the motion and attested that, unless the record were reopened, it did not intend to offer any additional evidence in support of its case. The Special Master denied New Mexico’s motion. Then, on the basis of the evidence previously received, he developed additional factual findings and reaffirmed his original recommendation. II Last Term, because our initial inquiry turned on the factors relevant to determining a just apportionment, the Court explained in detail the law of equitable apportionment. This Term, because our inquiry turns on the evidentiary material Colorado has offered in support of its complaint, we find it necessary to explain the standard by which we judge proof in actions for equitable apportionment. The function of any standard of proof is to “instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.” In re Winship, 397 U. S. 358, 370 (1970) (Harlan, J., concurring). By informing the factfinder in this manner, the standard of proof allocates the risk of erroneous judgment between the litigants and in 316 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. dicates the relative importance society attaches to the ultimate decision. See Addington v. Texas, 441 U. S. 418, 423-425 (1979). Last Term, the Court made clear that Colorado’s proof would be judged by a clear-and-convincing-evidence standard. Colorado v. New Mexico, 459 U. S., at 187-188, and n. 13. In contrast to the ordinary civil case, which typically is judged by a “preponderance of the evidence” standard, we thought a diversion of interstate water should be allowed only if Colorado could place in the ultimate factfinder an abiding conviction that the truth of its factual contentions are “highly probable.” See C. McCormick, Law of Evidence §320, p. 679 (1954). This would be true, of course, only if the material it offered instantly tilted the evidentiary scales in the affirmative when weighed against the evidence New Mexico offered in opposition. See generally McBaine, Burden of Proof: Degrees of Belief, 32 Calif. L. Rev. 242, 251-254 (1944). Requiring Colorado to present clear and convincing evidence in support of its proposed diversion is necessary to appropriately balance the unique interests involved in water rights disputes between sovereigns. The standard reflects this Court’s long-held view that a proposed diverter should bear most, though not all, of the risks of erroneous decision: “The harm that may result from disrupting established uses is typically certain and immediate, whereas the potential benefits from a proposed diversion may be speculative and remote.” Colorado v. New Mexico, 459 U. S., at 187; see also id., at 182, n. 9. In addition, the clear-and-convincing-evidence standard accommodates society’s competing interests in increasing the stability of property rights and in putting resources to their most efficient uses: “[T]he rule of priority [will] not be strictly applied where it ‘would work more hardship’ on the junior user ‘than it would bestow benefits’ on the senior user . . . [,though] the equities supporting the protection of existing economies will usually be compel COLORADO v. NEW MEXICO 317 310 Opinion of the Court ling.” Id., at 186-187 (quoting Nebraska v. Wyoming, 325 U. S. 589, 619 (1945)). In short, Colorado’s diversion should and will be allowed only if actual inefficiencies in present uses or future benefits from other uses are highly probable. HI With these principles in mind, we turn to review the evidence the parties have submitted concerning the proposed diversion. As our opinion noted last Term, New Mexico has met its initial burden of showing “real or substantial injury” because “any diversion by Colorado, unless offset by New Mexico at its own expense, [would] necessarily reduce the amount of water available to New Mexico users.” 459 U. S., at 188, n. 13. Accordingly, the burden shifted on remand to Colorado to show, by clear and convincing evidence, that reasonable conservation measures could compensate for some or all of the proposed diversion and that the injury, if any, to New Mexico would be outweighed by the benefits to Colorado from the diversion. Though the Master’s findings on these issues deserve respect and a tacit presumption of correctness, the ultimate responsibility for deciding what are correct findings of fact remains with us. See Mississippi v. Arkansas, 415 U. S. 289, 291-292, 294 (1974); C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4054, pp. 196-197 (1978). Upon our independent review of the record, we find that Colorado has failed to meet its burden. A To establish whether Colorado’s proposed diversion could be offset by eliminating New Mexico’s nonuse or inefficiency, we asked the Master to make specific findings concerning existing uses, supplies of water, and reasonable conservation measures available to the two States. After assessing the evidence both States offered about existing uses and available supplies, the Master concluded that “current levels of use primarily reflect failure on the part of existing users to 318 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. fully develop and put to work available water.” Additional Factual Findings 28. Moreover, with respect to reasonable conservation measures available, the Master indicated his belief that more careful water administration in New Mexico would alleviate shortages from unregulated stockponds, fishponds, and water detention structures, prevent waste from blockage and clogging in canals, and ensure that users fully devote themselves to development of available resources. He further concluded that “the heart of New Mexico’s water problem is the Vermejo Conservancy District,” id., at 20, which he considered a failed “reclamation project [that had] never lived up to its expectations or even proved to be a successful project, . . . and [that] quite possibly should never have been built.” Id., at 8. Though the District was quite arguably in the “middle range in reclamation project efficiencies,” id., at 20, the Master was of the opinion “that [the District’s] inefficient water use should not be charged to Colorado.” Ibid. Furthermore, though Colorado had not submitted evidence or testimony of any conservation measures that C. F. & I. would take, the Master concluded that “it is not for the Master or for New Mexico to say that reasonable attempts to conserve water will not be implemented by Colorado.” Id., at 21. We share the Master’s concern that New Mexico may be overstating the amount of harm its users would suffer from a diversion. Water use by appropriators along the Vermejo River has remained relatively stable for the past 30 years, and this historic use falls substantially below the decreed rights of those users. Unreliable supplies satisfactorily explain some of this difference, but New Mexico’s attempt to excuse three decades of nonuse in this way is, at the very least, suspect. Nevertheless, whatever the merit of New Mexico’s explanation, we cannot agree that Colorado has met its burden of identifying, by clear and convincing evidence, conservation efforts that would preserve any of the Vermejo River water supply. COLORADO v. NEW MEXICO 319 310 Opinion of the Court For example, though Colorado alleged that New Mexico could improve its administration of stockponds, fishponds, and water detention structures, it did not actually point to specific measures New Mexico could take to conserve water. Thus, ultimately all the Master could conclude was that some unspecified “[r]eduction and/or regulation . . . could not help but be an effort, however small, to conserve the water supply. ...” Id., at 18. Similarly, though Colorado asserted that more rigorous water administration could eliminate blocked diversion works and ensure more careful development of water supplies, it did not show how this would actually preserve existing supplies. Even if Colorado’s generalizations were true, they would prove only that some junior users are diverting water that senior appropriators ultimately could call; they would not prove that water is being wasted or used inefficiently by those actually diverting it. In short, the administrative improvements Colorado suggests are either too general to be meaningful or involve redistribution, as opposed to preservation, of water supplies. Colorado’s attack on current water use in the Vermejo Conservancy District is inadequate for much the same reason. Our cases require only conservation measures that are “financially and physically feasible” and “within practicable limits.” See, e. g., Colorado v. New Mexico, 459 U. S., at 192; Wyoming v. Colorado, 259 U. S. 419, 484 (1922). New Mexico submitted substantial evidence that the District is in the middle of reclamation project efficiencies and that the District has taken considerable independent steps—including, the construction, at its own expense and on its own initiative, of a closed stockwater delivery system—to improve the efficiency of its future water use. Additional Factual Findings 20. The Master did not find to the contrary; indeed, he commended New Mexico for the substantial efforts it had taken. See ibid. Nevertheless, he accepted Colorado’s general assertion that the District was not as efficient as other reclamation projects and concluded that New Mexico’s 320 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. inefficient use should not be charged to Colorado. But Colorado has not identified any “financially and physically feasible” means by which the District can further eliminate or reduce inefficiency and, contrary to the Master’s suggestion, we believe that the burden is on Colorado to do so. A State can carry its burden of proof in an equitable apportionment action only with specific evidence about how existing uses might be improved, or with clear evidence that a project is far less efficient than most other projects. Mere assertions about the relative efficiencies of competing projects will not do. Finally, there is no evidence in the record that “Colorado has undertaken reasonable steps to minimize the amount of the diversion that will be required.” Colorado v. New Mexico, supra, at 186. Nine years have passed since C. F. & I. first proposed diverting water from the Vermejo River. Yet Colorado has presented no evidence concerning C. F. & I.’s inability to relieve its needs through substitute sources. Furthermore, there is no evidence that C. F. & I. has settled on a definite or even tentative construction design or plan, or that it has prepared an economic analysis of its proposed diversion. Indeed, C. F. & I. has not even conducted an operational study of the reservoir that Colorado contends will be built in conjunction with the proposed diversion. It may be impracticable to ask the State proposing a diversion to provide unerring proof of future uses and concomitant conservation measures that would be taken. But it would be irresponsible of us to apportion water to uses that have not been, at a minimum, carefully studied and objectively evaluated, not to mention decided upon. Financially and physically feasible conservation efforts include careful study of future, as well as prudent implementation of current, water uses. Colorado has been unwilling to take any concrete steps in this direction. Society’s interest in minimizing erroneous decisions in equitable apportionment cases requires that hard facts, not COLORADO v. NEW MEXICO 321 310 Opinion of the Court suppositions or opinions, be the basis for interstate diversions. In contrast to Justice Stevens, we do not believe Colorado has produced sufficient facts to show, by clear and convincing evidence, that reasonable conservation efforts will mitigate sufficiently the injury that New Mexico successfully established last Term that it would suffer were a diversion allowed. No State can use its lax administration to establish its claim to water. But once a State successfully proves that a diversion will cause it injury, the burden shifts to the diverter to show that reasonable conservation measures exist. Colorado has not carried this burden. B We also asked the Master to help us balance the benefits and harms that might result from the proposed diversion. The Master found that Colorado’s proposed interim use is agricultural in nature and that more permanent applications might include use in coal mines, timbering, power generation, domestic needs, and other industrial operations. The Master admitted that “[t]his area of fact finding [was] one of the most difficult [both] because of the necessarily speculative nature of [the] benefits ...” and because of Colorado’s “natural reluctance to spend large amounts of time and money developing plans, operations, and cost schemes . . . .” Additional Factual Findings 23. Nevertheless, because the diverted water would, at a minimum, alleviate existing water shortages in Colorado, the Master concluded that the evidence showed considerable benefits would accrue from the diversion. Furthermore, the Master concluded that the injury, if any, to New Mexico would be insubstantial, if only because reasonable conservation measures could, in his opinion, offset the entire impact of the diversion. Id., at 24-28. Again, we find ourselves without adequate evidence to approve Colorado’s proposed diversion. Colorado has not committed itself to any long-term use for which future benefits can be studied and predicted. Nor has Colorado specified 322 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. how long the interim agricultural use might or might not last. All Colorado has established is that a steel corporation wants to take water for some unidentified use in the future. By contrast, New Mexico has attempted to identify the harms that would result from the proposed diversion. New Mexico commissioned some independent economists to study the economic effects, direct and indirect, that the diversion would have on persons in New Mexico. The study these economists produced was submitted at the original hearing, conducted prior to the remand, as evidence of the injury that would result from the reduction in water supplies. No doubt, this economic analysis involves prediction and forecast. But the analysis is surely no more speculative than the generalizations Colorado has offered as “evidence.” New Mexico, at the very least, has taken concrete steps toward addressing the query this Court posed last Term. Colorado has made no similar effort. Colorado objects that speculation about the benefits of future uses is inevitable and that water will not be put to its best use if the expenditures necessary to development and operation must be made without assurance of future supplies. We agree, of course, that asking for absolute precision in forecasts about the benefits and harms of a diversion would be unrealistic. But we have not asked for such precision. We have only required that a State proposing a diversion conceive and implement some type of long-range planning and analysis of the diversion it proposes. Long-range planning and analysis will, we believe, reduce the uncertainties with which equitable apportionment judgments are made. If New Mexico can develop evidence to prove that its existing economy is efficiently using water, we see no reason why Colorado cannot take similar steps to prove that its future economy could do better. In the nine years that have passed since C. F. & I. first requested a diversion, neither it nor Colorado has decided upon a permanent use for the diverted water. It therefore is COLORADO v. NEW MEXICO 323 310 Opinion of the Court no surprise that Colorado cannot conduct studies or make predictions about the benefits and harms of its proposed diversion. Under the clear-and-convincing-evidence standard, it is Colorado, and not New Mexico, that must bear the risk of error from the inadequacy of the information available. C As a final consideration, the Master pointed out that approximately three-fourths of the water in the Vermejo River system is produced in Colorado. He concluded, therefore, that “the equities are with Colorado, which requests only a portion of the water which it produces.” Additional Factual Findings 29. Last Term, the Court rejected the notion that the mere fact that the Vermejo River originates in Colorado automatically entitles Colorado to a share of the river’s waters. Colorado v. New Mexico, 459 U. S., at 181, n. 8. Both Colorado and New Mexico recognize the doctrine of prior appropriation, id., at 179, and appropriative, as opposed to riparian, rights depend on actual use, not land ownership. See id., at 179, n. 4. It follows, therefore, that the equitable apportionment of appropriated rights should turn on the benefits, harms, and efficiencies of competing uses, and that the source of the Vermejo River’s waters should be essentially irrelevant to the adjudication of these sovereigns’ competing claims. Id., at 181, n. 8. To the extent the Master continued to think the contrary, he was in error. IV We continue to believe that the flexible doctrine of equitable apportionment extends to a State’s claim to divert previously appropriated water for future uses. But the State seeking such a diversion bears the burden of proving, by clear and convincing evidence, the existence of certain relevant factors. The complainant must show, for example, the extent to which reasonable conservation measures can adequately compensate for the reduction in supply due to the 324 OCTOBER TERM, 1983 Stevens, J., dissenting 467 U. S. diversion, and the extent to which the benefits from the diversion will outweigh the harms to existing users. This evidentiary burden cannot be met with generalizations about unidentified conservation measures and unstudied speculation about future uses. The Special Master struggled, as best he could, to balance the evidentiary requirement against the inherent limitations of proving a beneficial future use. However, we do not find enough evidence to sustain his findings. Until Colorado can generate sufficient evidence to show that circumstances have changed and that a diversion is appropriate, the equities compel the continued protection of the existing users of the Vermejo River’s waters. Accordingly, we sustain the State of New Mexico’s exceptions to the Special Master’s Report and Additional Factual Findings, and dismiss the case. It is so ordered. Justice Stevens, dissenting. The Special Master has recommended the entry of a decree that would establish a diversion point in the Rocky Mountains and allow Colorado to divert no more than 4,000 acre-feet of water from the Vermejo River at that point; the diverted flow would make an intermountain transfer to supplement the presently inadequate flow of the Purgatoire River in Colorado. Accretions to the Vermejo below the diversion point, as well as the remainder of the original flow, would be available for the four principal users of the Vermejo River. Those four users are all in New Mexico and, of course, are upstream from the point where the Vermejo flows into the Canadian River. A gauge that is located between the second and third of those four users has measured the flow of the Vermejo since 1916. The average annual flow of the river at that point since 1921 is 12,800 acre-feet; if the highest flow years are eliminated, the average is 10,900 acre-feet; if just the 1970’s, which included especially dry years, are considered, the aver COLORADO v. NEW MEXICO 325 310 Stevens, J., dissenting age is 8,262 acre-feet. No matter which figure is used, the Master’s findings make it perfectly clear that the supply will remain adequate to satisfy the needs of the first three of the four principal appropriators on the river. Colorado v. New Mexico, 459 U. S. 176, 180 (1982) (hereinafter Colorado I). The critical dispute concerns the impact of the proposed diversion on the fourth—the Vermejo Conservancy District. As the Court noted last Term, the Special Master’s recommendation rested on “two alternative grounds: first, that New Mexico could compensate for some or all the Colorado diversion through reasonable water conservation measures; and second, that the injury, if any, to New Mexico would be outweighed by the benefit to Colorado from the diversion.” Id., at 181. Neither last Term, nor today, has the Court questioned the legal sufficiency of either of those grounds. Last Term, however, we requested the Master to provide us with additional factual findings; today the Court decides that the evidence does not support either of the Master’s conclusions. I respectfully disagree with the Court’s treatment of two questions of law as well as with its evaluation of the facts. I The Court carefully explains why it has concluded that Colorado’s proof should be judged by a clear-and-convincing-evidence standard. Inasmuch as this is the standard that the Special Master applied, that explanation is somewhat academic. The more troublesome question is what standard the Court should apply when it reviews 28 pages of detailed findings of fact by the judge whom we entrusted to conduct the lengthy trial in this case. In the exercise of our original jurisdiction it may well be appropriate for us to make a de novo review of the record. The Master’s report is, after all, merely a recommendation and there is no rule of law that requires us to accord it any special deference. I do not think that it would be appropri 326 OCTOBER TERM, 1983 Stevens, J., dissenting 467 U. S. ate in our original jurisdiction cases to accord the same degree of deference that Federal Rule of Civil Procedure 52(a) directs appellate judges to accord to the findings of fact made by district judges in ordinary litigation. Nevertheless, in my view, the cause of justice is more likely to be well served by according considerable deference to the Master’s factual determinations. The record in cases such as this is typically lengthy, technical, and complex. The testimony and accompanying exhibits are much more difficult to assimilate and fully comprehend from the cold record than in the living trial, and of course we do not have the opportunity to make assessments of the demeanor of the witnesses. The majority repeatedly states that it cannot “find enough evidence” to sustain the Master’s findings. E. g., ante, at 324. Based upon my examination of the trial testimony and exhibits presented to the Special Master, the majority’s search for the evidence must have been cursory indeed. On its face, the majority opinion does not review the evidence in the case; instead it reviews the Special Master’s findings, and in the process of doing so makes general observations regarding the evidence.1 If the Court gave the Special Master’s report the respect that I regard as its due—rather than merely paying lip-service to a “tacit presumption of correctness” ante, at 317—I believe it would reach the conclusion that his recommendation is fully supported by his detailed findings and that those findings are fully supported by the evidence. :The majority does make a vague reference to certain economic studies commissioned by New Mexico. Ante, at 322. It is unclear, however, whether the majority actually relies on the substance of this evidence at all. Instead, we are told that New Mexico has “attempted to identify harms that would result” and has taken “concrete steps toward addressing the query this Court posed last Term.” Ibid. It seems to matter little whether New Mexico has failed in this regard, because its analysis is “no more speculative” than Colorado’s evidence. Ibid. The majority nevertheless gives New Mexico an “A for effort,” as it were, whereas Colorado is seemingly penalized because it “has made no similar effort,” ibid. COLORADO v. NEW MEXICO 327 310 Stevens, J., dissenting II As The Chief Justice emphasized in his concurring opinion when the case was here last Term, “these two States come to the Court on equal footing.” 459 U. S., at 191. Colorado is not entitled to any priority simply because the river originates in Colorado, and New Mexico is not entitled to an undiminished flow simply because of its first use. Ibid. We must balance the equities of the competing claims as they existed at the time this controversy began. Neither party should be permitted to improve its legal position by making changes in its use of the river’s waters after our jurisdiction was invoked. Once these principles are recognized, the “remaining questions are largely matters of fact. The evidence is voluminous, some of it highly technical and some quite conflicting. It has all been considered. The reasonable limits of an opinion do not admit of its extended discussion. We must be content to give our conclusions on the main questions and make such references to and comment on what is evidential as will point to the grounds on which the conclusions on those questions rest. As to minor questions we can only state the ultimate facts as we find them from the evidence.” Wyoming v. Colorado, 259 U. S. 419, 471 (1922). The first of the two alternative grounds supporting the Master’s recommendation is that “New Mexico could compensate for some or all the Colorado diversion through reasonable water conservation measures,” Colorado I, 459 U. S., at 181. From the outset of the litigation, Colorado has claimed that New Mexico’s use of the Vermejo’s waters has been wasteful and inefficient. Colorado argues that one “fact” it has stressed throughout the litigation is that “a closed stock and domestic water system could eliminate the waste of over 2,000 acre-feet annually.” Brief for Colorado 41, n. 20, 43-45. This fact—which is essentially undisputed—should be “hard” enough even for the majority, and provides irre * 328 OCTOBER TERM, 1983 Stevens, J., dissenting 467 U. S. futable support for the conclusion that there was a significant amount of waste in the District when the lawsuit began.2 The Court sidesteps this point, accepting New Mexico’s argument that the benefits of this system should inure solely to the benefit of New Mexico. But New Mexico simply continues to cling to the position that it should not be required to employ conservation measures to facilitate Colorado’s proposed uses, notwithstanding the fact that we explicitly rejected this position last Term, 459 U. S., at 185-186, and in doing so quoted the following language from our seminal decision in this area: “The question here is not what one State should do for the other, but how each should exercise her relative rights in the waters of this interstate stream. . . . Both subscribe to the doctrine of appropriation, and by that doctrine rights to water are measured by what is reasonably required and applied. Both States recognize that conservation within practicable limits is essential in order that needless waste may be prevented and the largest feasible use may be secured. This comports with the all-pervading spirit of the doctrine of appropriation and takes appropriate heed of the natural necessities out of which it arose. We think that doctrine lays on each of these States a duty to exercise her right reason 2 Colorado further argues that the diversion it seeks would be totally offset by this savings. The argument is based on the fact that the saving of 2,000 acre-feet is realized at the reservoirs in the District, and that there is a significant loss of water during its transit from the river to the reservoirs, and also resulting from evaporation from the reservoirs. Thus, according to Colorado, an increase of 2,000 acre-feet of water in the reservoirs would offset a much larger diversion from the river itself. One need not fully accept this argument to recognize that the recommended 4,000 acre-feet diversion upstream would produce a significantly lower net loss at the reservoirs, or—more significantly—that when the complaint was filed, at least 2,000 acre-feet of water were being wasted by just one of the four principal users in New Mexico. COLORADO v. NEW MEXICO 329 310 Stevens, J., dissenting ably and in a manner calculated to conserve the common supply.” Wyoming v. Colorado, 259 U. S., at 484. New Mexico argues that the “important factor to consider in regard to the closed domestic and stockwater system is the timing.” Reply Brief for New Mexico 23. It appears that before this controversy arose, water users in the area “began discussing the possibility of building a stockwater distribution system that could save the water necessarily lost” by using the open canals, and a cooperative of water users was formed to investigate “possible solutions.” Ibid, (citing N. M. Ex. No. E-3). Although the users apparently recognized and considered the need to eliminate this waste before this controversy began, Tr. 2765, New Mexico did not take any action to eliminate the waste inherent in the District’s 60-mile network of open canals until after CF&I generated this controversy in 1975 by obtaining a conditional right to divert water from the Vermejo River. We will never know if this waste would have been eliminated but for the existence of this lawsuit; we do know, however, that the water was still being wasted at the time this action was commenced. With respect to the Vermejo Conservancy District—which of course is the only New Mexico user whose water supply might be impaired by the proposed diversion—the Master found: “At the heart of New Mexico’s water problem is the Vermejo Conservancy District. Whether lack of administration, lack of diligence, lack of resources or lack of ability is the cause, there is little doubt that the District has failed as a water reclamation project and has serious financial and operational problems of its own. (Tr. 164-169). Several of the conservation problems already discussed are present in the District. Furthermore, there is a problem of loss through evaporation in the District’s seven reservoirs. (Tr. 863, 1296-1299). The District has a 32% efficiency to farm headgates and 330 OCTOBER TERM, 1983 Stevens, J., dissenting 467 U. S. an overall system efficiency of 24.6%. (Tr. 2576). New Mexico claims that the District falls middle range in reclamation project efficiencies. (Tr. 1410-1411). However, the existence of other low efficiency systems is not justification for failure to fully develop water sources here. New Mexico argues that Colorado has merely pointed out areas of inefficient water use without making viable suggestions which would reduce or eliminate the inefficiency. It is the opinion of the Master that New Mexico’s inefficient water use should not be charged to Colorado.” Additional Factual Findings 20. The majority asserts that the “District was quite arguably in the ‘middle range in reclamation project efficiencies,’” ante, at 318 (quoting Additional Factual Findings 20). See also ante, at 319 (“New Mexico submitted substantial evidence that the District is in the middle [range] . . .”). The Master did not find that the District was within the middle range of efficiencies; he simply observed that New Mexico claimed that was so. The majority cannot bring itself to find in favor of New Mexico on this point, and given the evidence on the issue, that is understandable. One expert witness simply stated: “I know of many systems in which the efficiency is in this neighborhood 30 to 40 percent. ... I know of systems who have lower efficiencies simply because they cannot divert the available supply.” Tr. 1410-1411. When asked if he recalled the testimony of another expert that inefficiencies in that range could not be tolerated in the arid area, the witness responded: “I think he mentioned it would be prudent to make better use of the water supply.” Id., at 1411. Other evidence was offered by New Mexico in support of its claim that its efficiency was in the middle range, id., at 2720-2722, but the methodology of this evidence was highly questionable, id., at 2730-2746, and one expert testified that the District was “extremely inefficient” and “less efficient than any system in Colorado with which I’m familiar. ” Id., at 2576. It was this latter testimony that the Master credited COLORADO v. NEW MEXICO 331 310 Stevens, J., dissenting in explicitly holding that the overall efficiency of the District was 24.6%, implicitly rejecting New Mexico’s position. In light of all of the testimony, the Special Master concluded that “the existence of other low efficiency systems is not justification for failure to fully develop water sources here.” Additional Factual Findings 20. Moreover, the Master’s findings plainly identify additional conservation measures that are available to New Mexico. They involve a more efficient management of the entire Vermejo River and all specific improvements at the Conservancy District. The Master noted a marked contrast between the quality of water regulation and control in Colorado, which routinely monitors and takes affirmative measures to eliminate waste, e. g., Tr. 515-524,3 and that provided by New Mexico with respect to the Vermejo River. In New Mexico, a Water Master is appointed to administer a district if a majority of the users on the system petition the State Engineer, or the State Engineer may do so on his own. Id., at 2424. A Water Master monitors actual use, assures that uses are beneficial, and takes action if there is waste. There is no Water Master for the Vermejo. Incredibly, New Mexico’s answer to the lack of monitoring is simply the assertion that if one farmer “saw another wasting water the matter would be quickly resolved by the water users. Tr. 2416-2417.” Reply Brief for New Mexico 22. See also Tr. 1063-1064. The New Mexico State Engineer testified: “Even on the streams that have been adjudicated, we find it is generally not necessary to appoint a Water Master to measure the diversions and to enforce priorities and the water users themselves have generally been able to work these problems out among themselves, thus 3 It was in light of this evidence that the Special Master stated that “it is not for the Master or for New Mexico to say that reasonable attempts to conserve water will not be implemented by Colorado.” Additional Factual Findings 21. See also id., at 14-16. 332 OCTOBER TERM, 1983 Stevens, J., dissenting 467 U. S. avoiding the onerous Water Master tax they would have to pay and the installation of meters that they would have to pay if they demanded strict priority administration. “Now on the Vermejo we occasionally have had complaints, ‘Somebody is taking water out of priority, filling the lakes when I’m senior,’ things of that nature, and we have sent people over there, talked to the water users in much the same way as they talk to each other. And I think have been of some assistance to them in resolving the problem among themselves.” Id., at 2416-2417. The same engineer later insisted: “[W]e do not ignore waste. We don’t ignore unadjudicated uses, that is, unauthorized uses for irrigation or any other purpose,” id., at 2418, but later admitted he simply did “not have the staff to go out and monitor for nonuse.” Id., at 2426. Indeed, with his limited staff, he would not even conduct random spot checks, and instead took the position that if he could not monitor all users for nonuse, he would not check for nonuse at all, though he did leave open the possibility in case of undefined “critical circumstances” which he had “not yet encountered.” Ibid. New Mexico had never installed any gauges at the state line, and did not assist in the maintenance of the gauges installed by Colorado. Id., at 2432-2433. The New Mexico State Engineer did not know the approximate volume of water entering New Mexico, id., at 2433, was “not prepared to so agree” with projections on the effect of the diversion on the New Mexico users, ibid., and was “not able to agree or disagree” with figures regarding depletions, id., at 2433-2434. He explained that such figures were not necessary for New Mexico’s “administration” of the water rights under the New Mexico Vermejo Decree, because his department administered the decree “[o]nly in the sense of occasional fieldtrips to determine primarily whether any un COLORADO v. NEW MEXICO 333 310 Stevens, J., dissenting authorized acreage is being irrigated. . . . But we do not administer the priorities and diversion rates adjudicated by the decree.” Id., at 2434. “Who does do that?” counsel asked. The State Engineer responded: “We talked about that some. There is a working among themselves, a cooperation over there. The people work the problems out among themselves. Occasionally complaining to us. . . . “So long as they are able to resolve them and live with it, then day-to-day administration of priorities and the rates of diversion is not necessary and not in the public interest. “It’s costly and it costs those water users when we have to undertake that kind of administration. And I think that gives them some incentive to be reasonably cooperative in working out their problems locally.” Id., at 2434-2435. The problems with relying on complaints by other users are numerous and manifest. Of course, other New Mexico users would have little incentive to complain about waste by the most junior appropriator who in this case is farthest downstream—any water that reaches the District will simply flow into the Canadian River if it is not used by the District. Moreover, one wasteful user will think twice before pointing an accusatory finger at another user wasting water. Naturally without meters and without access to the other users’ land, few complaints are likely. The New Mexico Engineer conceded some of these problems, but simply asserted that the District users “have a pretty good idea what is going on upstream particularly.” Id., at 2424. In his additional factual findings, the Master specifically suggested the manifest deficiencies in New Mexico’s administration could be remedied by “monitoring, regulating and controlling the system in an effort to determine more accurately actual use, and to decrease nonuse, waste and general 334 OCTOBER TERM, 1983 Stevens, J., dissenting v 467 U. S. inefficiency.” Additional Factual Findings 18.4 There is clear and convincing evidence to support the Special Master’s findings and Colorado’s argument that “by means of lax administrative practices, New Mexico precludes a determination of precise demand and actual beneficial use.” Brief for Colorado 41. Colorado is correct when it states: “New Mexico should not be permitted to use its own lack of administration and record keeping to establish its claim that no water can be conserved. That position, if accepted by the Court, would encourage states to obscure their water use practices and needs in order to avoid their duty to help conserve the common supply.” Id., at 42. Last Term we explicitly rejected New Mexico’s inflexible interpretation of the doctrine of equitable apportionment under which priority would not merely be a guiding principle but the controlling one. 459 U. S., at 183-184. We further stated: “Our prior cases clearly establish that equitable apportionment will protect only those rights to water that are ‘reasonably required and applied.’ Wyoming v. Colo 4 The Master further stated: “One final problem area which the Master believes could be improved with proper administration is the failure of many users to devote sufficient time to the complete development of available water resources. Water shortages are a reality in arid western states and, therefore, water conservation is a task that must involve serious effort and attention together with large amounts of time and financial input. The Master understands the intense feelings that some of the individual users have for their land and their lifestyle (See Tr. 2192, 2206, 2215-16); the Master also understands that farming or ranching often needs to be supplemented by other sources of income and, therefore, other jobs. (See Tr. 2207). However, New Mexico users, individuals, or otherwise, cannot expect to be able to take the available water in the Vermejo River at their convenience without taking the time and energy to implement changes and development to help conserve and augment the available water. Careful monitoring and regulation as part of a program of administration would aid all users in full development of their water supply and demands.” Id., at 19-20. COLORADO v. NEW MEXICO 335 310 Stevens, J., dissenting rado, 259 U. S. 419, 484 (1922). Especially in those Western States where water is scarce, ‘[t]here must be no waste ... of the “treasure” of a river. . . . Only diligence and good faith will keep the privilege alive.’ Washington v. Oregon, 297 U. S. 517, 527 (1936). Thus, wasteful or inefficient uses will not be protected. See ibid.; Nebraska v. Wyoming, [325 U. S.], at 618. Similarly, concededly senior water rights will be deemed forfeited or substantially diminished where the rights have not been exercised or asserted with reasonable diligence. Washington n. Oregon, supra, at 527-528; Colorado v. Kansas, 320 U. S. 383, 394 (1943).” Id., at 184. New Mexico’s manifestly lax, indeed virtually nonexistent, administration of the Vermejo surely substantially diminishes its rights to the waters. It invites waste, and renders the amount of that waste an unknown. “Protection of existing economies does not require that users be permitted to continue in unreasonably wasteful or inefficient practices.” Id., at 195 (O’Connor, J., concurring). Moreover, the Special Master identified further specific problems causing water shortages or loss that might be alleviated by more careful administration: “One such problem is unregulated stockponds, fishponds and water detention structures. (Colo. Ex. Nos. 83, 40). While there is no question that such water use is to a certain extent necessary and beneficial, some sort of restrictions should apply. The numbers of ponds and other structures might be limited; when appropriate, reuse should be developed; and, the extent of water diverted to these areas should be in some way monitored or controlled. There is some indication by New Mexico that approximately 2,024 stockponds exist in Colfax County. (Defendants’ Brief on Remand, p. 53). Reduction and/or regulation of some type could not help but 336 OCTOBER TERM, 1983 Stevens, J., dissenting 467 U. S. be an effort, however small, to conserve the water supply and put it to beneficial use. “There is at least some evidence in reports from the Bureau of Reclamation that available runoff is not being diverted because dams and supply canals are blocked with silt and other debris. (Colo. Ex. Nos. 38, 40, 43; Tr. 2200). Proper administration would make users aware of the diversion problem and perhaps the state and its users together could find means to clean up the canals and prevent further clogging. “Another problem contributing to water waste and inefficiency is the inability to control headgate spills, divert all the water available, and fully develop all available stream sources. (Tr. 1830-1834,1913-1914). Perhaps repair or revision of the necessary structures is all that is needed, or perhaps resort to a project of more complicated construction is necessary. The Master does not mean to suggest that burdensome and unreasonable efforts are required to be undertaken by New Mexico; however, reasonable repair based on careful development and administration could further reduce water shortages caused by inefficiency and waste.” Additional Factual Findings 18-19. Based on his review of the entire record, the Master found: “The Master is of the opinion that based on the evidence in its entirety, there is already sufficient water if New Mexico would take every opportunity to develop their resources fully. With proper conservation measures, there is an adequate water supply to satisfy the needs of all users.” Id., at 20-21.5 5 In the conclusion of the report the Master expressly stated: “The available supply of water from the Vermejo River is sufficient for current New Mexico users, and with reasonable conservation measures would meet the needs of Colorado users as well. The available water supply can be enhanced through diligent and complete development of the Vermejo source as well as alternative sources. Many current users do not COLORADO v. NEW MEXICO 337 310 Stevens, J., dissenting III Alternatively, the Master found that the benefit to Colorado from the diversion would outweigh the injury, if any, to New Mexico. The identifiable benefits to Colorado included projected permanent uses, interim uses, and the alleviation of the existing shortages in the Purgatoire River system. The Master found that the proposed permanent uses include “a water powered hydroelectric plant generating power for a sawmill and related timber operations; coal washing at CF&I coal mines which would save transportation of the waste material from the mines to Pueblo, Colorado as well as development of additional coal mines; domestic and recreational purposes; possible synthetic fuel development; and, supplementation of current inadequate water supply in Colorado, including both CF&I uses as well as city and conservancy district (irrigation) shortages. (Tr. 738-749, 795-96, 623-639, 654, 656).” Id., at 22. The Master properly acknowledged that there could be no certainty that all of Colorado’s proposed uses would actually materialize, but he concluded that “if even half of them are fully implemented,” the diversion would be justified. He added: “One of the more important uses, which is certain to occur, is that the water appropriated from the Vermejo require a continuous supply and systems of reservoirs provide relief for those who do.” Additional Factual Findings 28. While Colorado did not undertake a detailed study of ways to improve the efficiency of the Vermejo system in New Mexico, thinking that it was not its place to administer the Vermejo in New Mexico, Tr. 238-239, based on the evidence available, its experts concluded that reasonable conservation measures would offset the diversion, e. g., id., at 243, 247, 876, 2579. This expert opinion testimony was plainly admissible on this ultimate question, Fed. Rules Evid. 702, 704, and together with other evidence in the record, fully supports the Master’s conclusion on this question. 338 OCTOBER TERM, 1983 Stevens, J., dissenting 467 U. S. River will supplement the existing insufficient water supply available to Colorado users. There seems to be little doubt that the Purgatoire River system is overappropriated, demand exceeding available supply. Any additional water would help to relieve shortages. CF&I and the city of Trinidad are but two examples of users that would benefit by having water available to meet their demands. (Tr. 535-538, 623-630, 795-796). There is some thought that the benefit of alleviating these shortages is sufficient to justify Colorado diversion of Vermejo water; however, Colorado’s proposal does not stop with alleviating shortages but goes on with major plans for the water and thereby additional benefits.” Id., at 23-24. With respect to the interim period pending full development of permanent uses, the Master found: “Colorado proposes to temporarily use the diverted Vermejo River water for irrigation of 2,000 acres of agricultural land owned by CF&I. Plans to use and reuse the water as it flows down the valley result in a high efficiency expectation. (Tr. 744-746).” Id., at 22. The Master credited evidence adduced by Colorado estimating that for its proposed agricultural uses of the diverted water “the efficiency will be 60-75%.”6 The Master again emphasized that reasonable conservation measures “would reduce New Mexico’s ‘loss’ to insignificance.” Id., at 27. He also noted that the District received a significant supply of water from the Chico River, that it has 6 “There is no reason to doubt the validity of Colorado’s proposals or intentions. Even if the actual does not comport with the ideal, it is not for the Master or for New Mexico to say that reasonable attempts to conserve water will not be implemented by Colorado. The strict administration of water already on display in Colorado increases the likelihood that the proposed measures will be implemented at least to a reasonable degree.” Additional Factual Findings 21. COLORADO v. NEW MEXICO 339 310 Stevens, J., dissenting four large reservoirs that give it “great ability to store water and enhance the supply,” id., at 127 and, as the Court recognizes, ante, at 318, the District has historically used less water than was available to it.8 Finally, the Master summarized his conclusions concerning the District by stating that “shortages resulting from [the] Colorado diversion (if they exist at all) would be experienced in a project that has failed from the beginning to develop its allotted acreage, has failed to meet its financial obligations, and quite possibly should never have been built.” Additional Factual Findings 8. IV The Special Master’s task was not to draw up blueprints for New Mexico to eliminate its waste. The Master, based on all the evidence, concluded that reasonable conservation efforts in New Mexico would offset the effects of the Colorado diversion. Cf. Wyoming v. Colorado, 259 U. S., at 486 (“Our belief gathered from all the evidence is that, with the attention which rightly should be bestowed on a problem of such moment, it can be successfully solved within the limits of what is financially and physically practicable”). My examination of the testimony persuades me that that conclusion is supported by the record. Accordingly, I respectfully dissent. 7 See also id., at 27 (“As noted earlier, the District has a reservoir system allowing carryover from wet years to supply water during periods of shortage. Therefore, the user most affected does have a means of offsetting the possible shortage”). 8 The District has irrigated an average of 4,379 acres although it has rights from the Bureau of Reclamation to irrigate 7,979 acres. Id., at 8. Moreover, the Master found that two individual farmers with water rights senior to the District, but whose farms are located downstream from the District, have historically used less than their decreed rights even though the supply was adequate to enable them to develop their entire acreage. See id., at 6-7. 340 OCTOBER TERM, 1983 Syllabus 467 U. S. BLOCK, SECRETARY OF AGRICULTURE, ET AL. v. COMMUNITY NUTRITION INSTITUTE ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 83-458. Argued April 24, 1984—Decided June 4, 1984 To bring destabilizing competition among dairy farmers under control, the Agricultural Marketing Agreement Act of 1937 (Act) authorizes the Secretary of Agriculture (Secretary) to issue milk market orders setting the minimum prices that handlers (those who process dairy products) must pay to producers (dairy farmers) for their milk products. Pursuant to this authority, the Secretary issued market orders under which handlers are required to pay for “reconstituted milk” (milk manufactured by mixing milk powder with water) the minimum price for Class II milk (raw milk used to produce such products as dry milk powder) rather than the higher price covering Class I milk (raw milk processed and bottled for fluid consumption). The orders assume that handlers will use the reconstituted milk to manufacture surplus milk products, but for any portion of reconstituted milk not so used handlers must make a “compensatory payment” equal to the difference between Class I and Class II milk product prices. Respondents—three individual consumers of fluid dairy products, a handler regulated by the market orders, and a nonprofit organization—brought suit in Federal District Court, contending that the compensatory payment requirement makes reconstituted milk uneconomical for handlers to process. The District Court held, inter alia, that the consumers had no standing to challenge the orders. The Court of Appeals disagreed, holding that the consumers had suffered injury-in-fact, their injuries were redressable, and they were within the zone of interests protected by the Act, and that the Act’s structure and purposes did not reveal the type of “clear and convincing evidence of congressional intent needed to overcome the presumption in favor of judicial review.” Held: The individual consumers may not obtain judicial review of the milk market orders in question. Pp. 345-353. (a) It is clear from the structure of the Act that Congress intended that judicial review of market orders ordinarily be confined to suits by handlers in accordance with the provisions of the Act expressly entitling them to such review in a federal district court after exhausting their administrative remedies. Allowing consumers to sue the Secretary would severely disrupt the Act’s complex and delicate administrative scheme. Pp. 345-348. BLOCK v. COMMUNITY NUTRITION INSTITUTE 341 340 Opinion of the Court (b) The presumption favoring judicial review of administrative action does not control in cases such as this one, where the congressional intent to preclude consumer suits is “fairly discernible” in the detail of the legislative scheme. The Act contemplates a cooperative venture among the Secretary, producers, and handlers; consumer participation is not provided for or desired under that scheme. Stark v. Wickard, 321 U. S. 288, distinguished. Pp. 348-352. 225 U. S. App. D. C. 387, 698 F. 2d 1239, reversed. O’Connor, J., delivered the opinion of the Court, in which all other Members joined, except Stevens, J., who took no part in the decision of the case. Kathryn A. Oberly argued the cause for petitioners. With her on the briefs were Solicitor General Lee, Acting Assistant Attorney General Willard, Deputy Solicitor General Geller, and Leonard Schaitman. Ronald L. Plesser argued the cause for respondents. With him on the brief were Janie A. Kinney, Alan R. Schwartz, William B. Schultz, and Alan B. Morrison. Justice O’Connor delivered the opinion of the Court. This case presents the question whether ultimate consumers of dairy products may obtain judicial review of milk market orders issued by the Secretary of Agriculture (Secretary) under the authority of the Agricultural Marketing Agreement Act of 1937 (Act), ch. 296, 50 Stat. 246, as amended, 7 U. S. C. § 601 et seq. We conclude that consumers may not obtain judicial review of such orders. I A In the early 1900’s, dairy farmers engaged in intense competition in the production of fluid milk products. See Zuber v. Allen, 396 U. S. 168, 172-176 (1969). To bring this destabilizing competition under control, the 1937 Act authorizes the Secretary to issue milk market orders setting the minimum prices that handlers (those who process dairy products) 342 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. must pay to producers (dairy farmers) for their milk products. 7 U. S. C. §608c. The “essential purpose [of this milk market order scheme is] to raise producer prices,” S. Rep. No. 1011, 74th Cong., 1st Sess., 3 (1935), and thereby to ensure that the benefits and burdens of the milk market are fairly and proportionately shared by all dairy farmers. See Nebbia v. New York, 291 U. S. 502, 517-518 (1934). Under the scheme established by Congress, the Secretary must conduct an appropriate rulemaking proceeding before issuing a milk market order. The public must be notified of these proceedings and provided an opportunity for public hearing and comment. See 7 U. S. C. § 608c(3). An order may be issued only if the evidence adduced at the hearing shows “that [it] will tend to effectuate the declared policy of this chapter with respect to such commodity.” 7 U. S. C. § 608c(4). Moreover, before any market order may become effective, it must be approved by the handlers of at least 50% of the volume of milk covered by the proposed order and at least two-thirds of the affected dairy producers in the region. 7 U. S. C. §§608c(8), 608c(5)(B)(i). If the handlers withhold their consent, the Secretary may nevertheless impose the order. But the Secretary’s power to do so is conditioned upon at least two-thirds of the producers consenting to its promulgation and upon his making an administrative determination that the order is “the only practical means of advancing the interests of the producers.” 7 U. S. C. §608c(9)(B). The Secretary currently has some 45 milk market orders in effect. See 7 CFR pts. 1001-1139 (1984). Each order covers a different region of the country, and collectively they cover most, though not all, of the United States. The orders divide dairy products into separately priced classes based on the uses to which raw milk is put. See 44 Fed. Reg. 65990 (1979). Raw milk that is processed and bottled for fluid consumption is termed “Class I” milk. Raw milk that is used to BLOCK v. COMMUNITY NUTRITION INSTITUTE 343 340 Opinion of the Court produce milk products such as butter, cheese, or dry milk powder is termed “Class II” milk.1 For a variety of economic reasons, fluid milk products would command a higher price than surplus milk products in a perfectly functioning market. Accordingly, the Secretary’s milk market orders require handlers to pay a higher order price for Class I products than for Class II products. To discourage destabilizing competition among producers for the more desirable fluid milk sales, the orders also require handlers to submit their payments for either class of milk to a regional pool. Administrators of these regional pools are then charged with distributing to dairy farmers a weighted average price for each milk product they have produced, irrespective of its use. See 7 U. S. C. § 608c(5)(B)(ii). In particular, the Secretary has regulated the price of “reconstituted milk”—that is, milk manufactured by mixing milk powder with water—since 1964. See 29 Fed. Reg. 9002, 9010 (1964); see also 34 Fed. Reg. 16548, 16551 (1969). The Secretary’s orders assume that handlers will use reconstituted milk to manufacture surplus milk products. Handlers are therefore required to pay only the lower Class II minimum price. See 44 Fed. Reg. 65989, 65990 (1979). However, handlers are required to make a “compensatory payment” on any portion of the reconstituted milk that their records show has not been used to manufacture surplus milk products. 7 CFR §§ 1012.44(a)(5)(i), 1012.60(e) (1984). The compensatory payment is equal to the difference between the Class I and Class II milk product prices. Handlers make these payments to the regional pool, from which moneys are then distributed to producers of fresh fluid milk in the region where the reconstituted milk was manufactured and sold. § 1012.71(a)(1). 1 Under many orders, milk is divided into three classes. For purposes of this case, however, all milk other than milk used for fluid purposes is referred to as Class II milk. 344 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. B In December 1980, respondents brought suit in District Court, contending that the compensatory payment requirement makes reconstituted milk uneconomical for handlers to process.2 Respondents, as plaintiffs in the District Court, included three individual consumers of fluid dairy products, a handler regulated by the market orders, and a nonprofit organization. The District Court concluded that the consumers and the nonprofit organization did not have standing to challenge the market orders. In addition, it found that Congress had intended by the Act to preclude such persons from obtaining judicial review. The District Court dismissed the milk handler’s complaint because he had failed to exhaust his administrative remedies. The Court of Appeals affirmed in part and reversed in part, and remanded the case for a decision on the merits. 225 U. S. App. D. C. 387, 698 F. 2d 1239 (1983). The Court of Appeals agreed that the milk handler and the nonprofit organization had been properly dismissed by the District Court. But the court concluded that the individual consumers had standing: they had suffered an injury-in-fact, 2 Prior to filing suit, respondents petitioned the Secretary to hold a rulemaking hearing to amend the market orders so that reconstituted milk would no longer be subject to the compensatory payment rule. See 44 Fed. Reg. 65989 (1979). The Secretary published a Notice of Request and asked for comments. Ibid. Subsequently, the Secretary published a preliminary impact analysis of the proposal and invited comments. See 45 Fed. Reg. 75956 (1980). In April 1981, after respondents had filed suit in the District Court, the Secretary determined not to hold a rulemaking hearing because respondents’ proposal would not further the purposes of the Act. See App. 57-63. The portion of respondents’ complaint challenging the Secretary’s inaction on their rulemaking request was held moot by the Court of Appeals. 225 U. S. App. D. C. 387, 403, and n. 93, 698 F. 2d 1239, 1255, and n. 93 (1983). Respondents did not cross-petition for certiorari review of this issue, and we therefore have no occasion to consider it. BLOCK v. COMMUNITY NUTRITION INSTITUTE 345 340 Opinion of the Court their injuries were redressable, and they were within the zone of interests arguably protected by the Act. The Court also concluded that the statutory structure and purposes of the Act did not reveal “the type of clear and convincing evidence of congressional intent needed to overcome the presumption in favor of judicial review.” Id., at 400, and n. 75, 698 F. 2d, at 1252, and n. 75. The Court of Appeals expressly refused to follow the decision of the Ninth Circuit in Rasmussen v. Hardin, 461 F. 2d 595, cert, denied sub nom. Rasmussen v. Butz, 409 U. S. 933 (1972), which had held consumers precluded by statute from seeking judicial review. We granted certiorari to resolve the conflict in the Circuits. 464 U. S. 991 (1983). We now reverse the judgment of the Court of Appeals in this case. II Respondents filed this suit under the Administrative Procedure Act (APA), 5 U. S. C. § 701 et seq. The APA confers a general cause of action upon persons “adversely affected or aggrieved by agency action within the meaning of a relevant statute,” 5 U. S. C. § 702, but withdraws that cause of action to the extent the relevant statute “preclude[s] judicial review,” 5 U. S. C. § 701(a)(1). Whether and to what extent a particular statute precludes judicial review is determined not only from its express language, but also from the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved. See Southern R. Co. v. Seaboard Allied Mining Corp., 442 U. S. 444, 454-463 (1979); Morris v. Gressette, 432 U. S. 491, 499-507 (1977); see generally Note, Statutory Preclusion of Judicial Review Under the Administrative Procedure Act, 1976 Duke L. J. 431, 442-449. Therefore, we must examine this statutory scheme “to determine whether Congress precluded all judicial review, and, if not, whether Congress nevertheless foreclosed review to the class to which the [re 346 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. spondents] belon[g].” Barlow v. Collins, 397 U. S. 159, 173 (1970) (opinion of Brennan, J.,); see also Data Processing Service v. Camp, 397 U. S. 150, 156 (1970). It is clear that Congress did not intend to strip the judiciary of all authority to review the Secretary’s milk market orders. The Act’s predecessor, the Agricultural Adjustment Act of 1933, 48 Stat. 31, contained no provision relating to administrative or judicial review. In 1935, however, Congress added a mechanism by which dairy handlers could obtain review of the Secretary’s market orders. 49 Stat. 760. That mechanism was retained in the 1937 legislation and remains in the Act as §608c(15) today. Section 608c(15) requires handlers first to exhaust the administrative remedies made available by the Secretary. 7 U. S. C. § 608c(15)(A); see 7 CFR §§900.50-900.71 (1984). After these formal administrative remedies have been exhausted, handlers may obtain judicial review of the Secretary’s ruling in the federal district court in any district “in which [they are] inhabitant[s], or ha[ve their] principal placets] of business.” 7 U. S. C. § 608c(15)(B). These provisions for handler-initiated review make evident Congress’ desire that some persons be able to obtain judicial review of the Secretary’s market orders. The remainder of the statutory scheme, however, makes equally clear Congress’ intention to limit the classes entitled to participate in the development of market orders. The Act contemplates a cooperative venture among the Secretary, handlers, and producers the principal purposes of which are to raise the price of agricultural products and to establish an orderly system for marketing them. Handlers and producers—but not consumers—are entitled to participate in the adoption and retention of market orders. 7 U. S. C. §§608c(8), (9), (16)(B). The Act provides for agreements among the Secretary, producers, and handlers, 7 U. S. C. §608(2), for hearings among them, §§608(5), 608c(3), and for votes by producers and handlers, §§608c(8)(A), (9)(B), (12), BLOCK v. COMMUNITY NUTRITION INSTITUTE 347 340 Opinion of the Court 608c(19). Nowhere in the Act, however, is there an express provision for participation by consumers in any proceeding. In a complex scheme of this type, the omission of such a provision is sufficient reason to believe that Congress intended to foreclose consumer participation in the regulatory process. See Switchmen v. National Mediation Board, 320 U. S. 297, 305-306 (1943); cf. United States v. Erika, Inc., 456 U. S. 201, 208 (1982). To be sure, the general purpose sections of the Act allude to general consumer interests. See 7 U. S. C. §§ 602(2), (4). But the preclusion issue does not only turn on whether the interests of a particular class like consumers are implicated. Rather, the preclusion issue turns ultimately on whether Congress intended for that class to be relied upon to challenge agency disregard of the law. See Barlow v. Collins, supra, at 167. The structure of this Act indicates that Congress intended only producers and handlers, and not consumers, to ensure that the statutory objectives would be realized. Respondents would have us believe that, while Congress unequivocally directed handlers first to complain to the Secretary that the prices set by milk market orders are too high, it was nevertheless the legislative judgment that the same challenge, if advanced by consumers, does not require initial administrative scrutiny. There is no basis for attributing to Congress the intent to draw such a distinction. The regulation of agricultural products is a complex, technical undertaking. Congress channelled disputes concerning marketing orders to the Secretary in the first instance because it believed that only he has the expertise necessary to illuminate and resolve questions about them. Had Congress intended to allow consumers to attack provisions of marketing orders, it surely would have required them to pursue the administrative remedies provided in § 608c(15)(A) as well. The restriction of the administrative remedy to handlers strongly suggests that Congress intended a similar restriction of judicial review of market orders. 348 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. Allowing consumers to sue the Secretary would severely disrupt this complex and delicate administrative scheme. It would provide handlers with a convenient device for evading the statutory requirement that they first exhaust their administrative remedies. A handler may also be a consumer and, as such, could sue in that capacity. Alternatively, a handler would need only to find a consumer who is willing to join in or initiate an action in the district court. The consumer or consumer-handler could then raise precisely the same exceptions that the handler must raise administratively. Consumers or consumer-handlers could seek injunctions against the operation of market orders that “impede, hinder, or delay” enforcement actions, even though such injunctions are expressly prohibited in proceedings properly instituted under 7 U. S. C. §608c(15). Suits of this type would effectively nullify Congress’ intent to establish an “equitable and expeditious procedure for testing the validity of orders, without hampering the Government’s power to enforce compliance with their terms.” S. Rep. No. 1011, 74th Cong., 1st Sess., 14 (1935); see also United States v. Ru-zicka, 329 U. S. 287, 293-294, and n. 3 (1946). For these reasons, we think it clear that Congress intended that judicial review of market orders issued under the Act ordinarily be confined to suits brought by handlers in accordance with 7 U. S. C. §608c(15). Ill The Court of Appeals viewed the preclusion issue from a somewhat different perspective. First, it recited the presumption in favor of judicial review of administrative action that this Court usually employs. It then noted that the Act has been interpreted to authorize producer challenges to the administration of market order settlement funds, see Stark v. Wickard, 321 U. S. 288 (1944), and that no legislative history or statutory language directly and specifically supported the preclusion of consumer suits. In these circumstances, the Court of Appeals reasoned that the Act could not fairly be BLOCK v. COMMUNITY NUTRITION INSTITUTE 349 340 Opinion of the Court interpreted to overcome the presumption favoring judicial review and to leave consumers without a judicial remedy. See 225 U. S. App. D. C., at 400, and n. 75, 698 F. 2d, at 1252, and n. 75. We disagree with the Court of Appeals’ analysis. The presumption favoring judicial review of administrative action is just that—a presumption. This presumption, like all presumptions used in interpreting statutes, may be overcome by specific language or specific legislative history that is a reliable indicator of congressional intent. See, e. g., Southern R. Co. v. Seaboard Allied Milling Corp., 442 U. S., at 454-463; Schilling v. Rogers, 363 U. S. 666, 670-677 (1960). The congressional intent necessary to overcome the presumption may also be inferred from contemporaneous judicial construction barring review and the congressional acquiescence in it, see, e. g., Ludecke v. Watkins, 335 U. S. 160 (1948), or from the collective import of legislative and judicial history behind a particular statute, see, e. g., Heikkila v. Barber, 345 U. S. 229 (1953). More important for purposes of this case, the presumption favoring judicial review of administrative action may be overcome by inferences of intent drawn from the statutory scheme as a whole. See, e. g., Morris v. Gressette, 432 U. S. 491 (1977); Switchmen v. National Mediation Board, 320 U. S. 297 (1943). In particular, at least when a statute provides a detailed mechanism for judicial consideration of particular issues at the behest of particular persons, judicial review of those issues at the behest of other persons may be found to be impliedly precluded. See Barlow v. Collins, 397 U. S., at 168, and n. 2, 175, and n. 9 (opinion of Brennan, J.); Switchmen v. National Mediation Board, supra, at 300-301; cf. Associated General Contractors of California, Inc. v. Carpenters, 459 U. S. 519, 542 (1983). A case that best illustrates the relevance of a statute’s structure to the Court’s preclusion analysis is Morris v. Gressette, supra. In that case, the Court held that the Attorney General’s failure to object to a change in voting 350 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. procedures was an unreviewable administrative determination under the Voting Rights Act of 1965. Neither the Voting Rights Act nor its legislative history said anything about judicial review. Nevertheless, the Morris Court concluded that the “nature of the [statutory] remedy . . . strongly suggests that Congress did not intend the Attorney General’s actions under that provision to be subject to judicial review.” Id., at 501. The Court reasoned that Congress had intended the approval procedure to be expeditious and that reviewability would unnecessarily extend the period the State must wait for effecting its change. Id., at 504-505. The Court also found relevant the existence of other remedies to ensure the realization of the Voting Rights Act’s objectives. Id., at 505-507. In these circumstances, even though proof of specific congressional intent was not “clear and convincing” in the traditional evidentiary sense, the Court unremarkably found the intent to preclude judicial review implicit in the statutory scheme. In this case, the Court of Appeals did not take the balanced approach to statutory construction reflected in the Morris opinion. Rather, it recited this Court’s oft-quoted statement that “only upon a showing of ‘clear and convincing evidence’ of a contrary legislative intent should the courts restrict access to judicial review.” Abbott Laboratories v. Gardner, 387 U. S. 136, 141 (1967). See also Southern R. Co. v. Seaboard Allied Milling Corp., supra, at 462; Dunlop v. Bachowski, 421 U. S. 560, 568 (1975). According to the Court of Appeals, the “clear and convincing evidence” standard required it to find unambiguous proof, in the traditional evidentiary sense, of a congressional intent to preclude judicial review at the consumers’ behest. Since direct statutory language or legislative history on this issue could not be found, the Court of Appeals found the presumption favoring judicial review to be controlling. This Court has, however, never applied the “clear and convincing evidence” standard in the strict evidentiary sense the BLOCK v. COMMUNITY NUTRITION INSTITUTE 351 340 Opinion of the Court Court of Appeals thought necessary in this case. Rather, the Court has found the standard met, and the presumption favoring judicial review overcome, whenever the congressional intent to preclude judicial review is “fairly discernible in the statutory scheme.” Data Processing Service v. Camp, 397 U. S., at 157. In the context of preclusion analysis, the “clear and convincing evidence” standard is not a rigid evidentiary test but a useful reminder to courts that, where substantial doubt about the congressional intent exists, the general presumption favoring judicial review of administrative action is controlling. That presumption does not control in cases such as this one, however, since the congressional intent to preclude judicial review is “fairly discernible” in the detail of the legislative scheme. Congress simply did not intend for consumers to be relied upon to challenge agency disregard of the law. It is true, as the Court of Appeals also noted, that this Court determined, in Stark v. Wickard, 321 U. S. 288 (1944), that dairy producers could challenge certain administrative actions even though the Act did not expressly provide them a right to judicial review. The producers challenged certain deductions the Secretary had made from the “producer settlement fund” established in connection with the milk market order in effect at the time. “[T]he challenged deduction[s] reduce[d] pro tanto the amount actually received by the producers for their milk.” Id., at 302. These deductions injured what the producers alleged were “definite personal rights” that were “not possessed by the people generally,” id., at 304, 309, and gave the producers standing to object to the administration of the settlement fund. See id., at 306. Though the producers’ standing could not by itself ensure judicial review of the Secretary’s action at their behest, see ibid., the statutory scheme as a whole, the Court concluded, implicitly authorized producers’ suits concerning settlement fund administration. See id., at 309-310. “[H]andlers [could not] question the use of the fund, because handlers had 352 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. no financial interest in the fund or its use.” Id., at 308. Thus, there was “no forum” in which this aspect of the Secretary’s actions could or would be challenged. Judicial review of the producers’ complaint was therefore necessary to ensure achievement of the Act’s most fundamental objectives— to wit, the protection of the producers of milk and milk products. By contrast, preclusion of consumer suits will not threaten realization of the fundamental objectives of the statute. Handlers have interests similar to those of consumers. Handlers, like consumers, are interested in obtaining reliable supplies of milk at the cheapest possible prices. See Zuber v. Allen, 396 U. S., at 190. Handlers can therefore be expected to challenge unlawful agency action and to ensure that the statute’s objectives will not be frustrated.3 Indeed, as noted above, consumer suits might themselves frustrate achievement of the statutory purposes. The Act contemplates a cooperative venture among the Secretary, producers, and handlers; consumer participation is not provided for or desired under the complex scheme enacted by Congress. Consumer suits would undermine the congressional preference for administrative remedies and provide a mechanism for disrupting administration of the congressional scheme. Thus, preclusion of consumer suits is perfectly consistent with the Court’s contrary conclusion concerning producer challenges in Stark v. Wickard and its analogous conclusion concerning voter challenges in Morris v. Gressette. IV The structure of this Act implies that Congress intended to preclude consumer challenges to the Secretary’s market orders. Preclusion of such suits does not pose any threat to 3 Whether handlers would pass on to consumers any savings they might secure through a successful challenge to the market order provisions is irrelevant. Consumers’ interest in market orders is limited to lowering the prices charged to handlers in the hope that consumers will then reap some benefit at the retail level. BLOCK v. COMMUNITY NUTRITION INSTITUTE 353 340 Opinion of the Court realization of the statutory objectives; it means only that those objectives must be realized through the specific remedies provided by Congress and at the behest of the parties directly affected by the statutory scheme.4 Accordingly, the judgment of the Court of Appeals is reversed. It is so ordered. Justice Stevens took no part in the decision of this case. 4 The conclusion that Congress intended to preclude consumers from seeking judicial review of the Secretary’s market orders avoids any pronouncement on the merits of respondents’ substantive claims. Since congressional preclusion of judicial review is in effect jurisdictional, we need not address the standing issues decided by the Court of Appeals in this case. See National Railroad Passenger Corp. v. National Assn, of Railroad Passengers, 414 U. S. 453, 456 (1974); see also id., at 465, and n. 13. 354 OCTOBER TERM, 1983 Syllabus 467 U. S. INTERSTATE COMMERCE COMMISSION ET AL. v. AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 82-1643. Argued January 10, 1984—Decided June 5, 1984 The Motor Carrier Act of 1980 in 49 U. S. C. § 10706(b)(3) established specific guidelines to which motor-carrier rate bureaus must conform if they are to receive antitrust immunity. In 1980, the Interstate Commerce Commission (ICC) issued an interpretative ruling explaining how it planned to implement these guidelines, and proposing a new remedy to enforce rate-bureau agreements whereby the ICC would retroactively reject effective tariffs that had been submitted in substantial violation of such agreements. Alarmed by the prospect of overcharge liability that would result from such retroactive rejection of tariffs, respondents, a group of motor-carrier rate bureaus, petitioned the Court of Appeals to review the ICC’s new remedy. The Court of Appeals held that the ICC lacked the power to reject effective tariffs. Held: The proposed new remedy lies within the ICC’s discretionary authority, and the ICC does not exceed its authority by nullifying effective tariffs submitted in substantial violation of rate-bureau agreements. Pp. 359-371. (a) Title 49 U. S. C. § 10762(e), which authorizes the ICC to reject a motor-carrier tariff if it violates the statutory requirements for publishing and filing tariffs or an implementing regulation, does not confer on the ICC the broad power to nullify effective tariffs retroactively. This is indicated by § 10762(e)’s language and the structure of the ICC’s remedial authority under the Interstate Commerce Act. Pp. 361-364. (b) The ICC, however, may elaborate upon its express statutory remedies when necessary to achieve specific statutory goals. In this case, retroactive rejection of rate-bureau tariffs is a justifiable adjunct to the ICC’s express § 10762(e) rejection authority,' and, to the extent there is an elaboration of that authority, it is necessary to ensure compliance with rate-bureau agreements. The rejection of effective tariffs submitted in substantial violation of such agreements simply extends the ICC’s express rejection authority so that it may adequately supervise those agreements to see that they comply with the § 10706(b)(3) guidelines. The legislative history of the Motor Carrier Act of 1980 makes it clear that, beyond the bounds of antitrust immunity granted in § 10706, Con- ICC v. AMERICAN TRUCKING ASSNS., INC. 355 354 Opinion of the Court gress wanted the forces of competition to determine motor-carrier tariffs, and intended that the ICC play a key role in holding carriers to the § 10706(b)(3) guidelines. And the remedy in question is a means of policing rate-bureau agreements sufficiently direct and close to the ICC’s statutory mandate to warrant approval of the remedy. Pp. 364-371. 688 F. 2d 1337, reversed and remanded. Marshall, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, White, and Rehnquist, JJ., joined. O’Connor, J., filed a dissenting opinion, in which Blackmun, Powell, and Stevens, JJ., joined, post, p. 371. Carter G. Phillips argued the cause for petitioners. On the briefs were Solicitor General Lee, John Broadley, and Lawrence H. Richmond. Patrick McEligot argued the cause for respondents. With him on the brief were Bryce Rea, Jr., Nelson J. Cooney, William Kenworthy, F. H. Lynch, Jr., William W. Pugh, J. Alan Royal, Robert A. Wilson, and Curtis Wood.* Justice Marshall delivered the opinion of the Court. This case presents a challenge to an effort by the Interstate Commerce Commission to create a new remedy to enforce motor-carrier rate-bureau agreements. The remedy at issue is the Commission’s authority to reject effective tariffs that have been submitted in substantial violation of ratebureau agreements. As we have recognized in the past, the Interstate Commerce Commission (Commission or ICC) has discretion to fashion remedies in furtherance of its statutory responsibilities. Trans Alaska Pipeline Rate Cases, 436 U. S. 631, 654 (1978). Although rejection of effective tariffs is a form of remedial power not expressly delegated to the Commission, the remedy as proposed by the Commission in this case is closely and directly related to the Commission’s express statutory powers and is designed to achieve objec *Michael Boudin, Stuart C. Stock, Albert B. Russ, Jr., Harry N. Babcock, and Harry McCall, Jr., filed a brief for Aberdeen and Rockfish Railroad Co. et al. as amici curiae urging affirmance. 356 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. tives set for the Commission by Congress. Under these limited circumstances, we hold that the proposed remedy lies within the Commission’s discretion. I Motor-carrier rate bureaus are groups of motor carriers formed to negotiate collective rates. Since the Reed-Bulwinkle Act of 1948, motor carriers within the jurisdiction of the Commission have enjoyed immunity from the antitrust laws to enter into rate bureaus and to submit collective rates to the Commission. Ch. 491, 62 Stat. 472. To receive this immunity, rate bureaus must apply for Commission approval of bureau agreements, which describe the manner in which a bureau will negotiate collective tariffs. The original Reed-Bulwinkle Act gave the ICC broad discretion to determine which rate-bureau agreements were consistent with national transportation policy. 49 U. S. C. §5 (1976 ed.). Until recently, the Commission was fairly liberal in approving ratebureau agreements, but, in the late 1970’s, the Commission began to disapprove an increasing number of agreements on the grounds that the agreements were undermining competition among motor carriers. In 1980, apparently disturbed by this abrupt shift in Commission policy but persuaded that some deregulation of motor carriers was necessary, Congress passed the Motor Carrier Act of 1980 (MCA). Pub. L. 96-296, 94 Stat. 793. The MCA in 49 U. S. C. § 10706(b)(3) establishes specific guidelines, to which rate-bureau agreements must conform if they are to receive antitrust immunity.1 Because the MCA creates a presumption that bureau ’The guidelines set disclosure requirements for rate agreements, sunshine rules for bureau meetings, and limitations on the issues that bureau members may discuss. 49 U. S. C. §§ 10706(b)(3)(A), (B). The most significant deregulatory aspect of the guidelines is a ban on discussions of tariffs applicable solely to individual carriers. § 10706(b)(3)(D). The scope of collective ratemaking permitted under the MCA is summarized in H. R. Rep. No. 96-1069, pp. 29-30 (1980). ICC v. AMERICAN TRUCKING ASSNS., INC. 357 354 Opinion of the Court agreements meeting the requirements of § 10706(b)(3) will qualify for antitrust immunity, the Act divests the Commission of much of its discretion to approve and disapprove ratebureau agreements. See H. R. Rep. No. 96-1069, p. 29 (1980). This case arises out of an ICC interpretative ruling issued in 1980 explaining how the Commission planned to implement the new statutory guidelines for rate-bureau immunity. Motor Carrier Rate Bureaus—Implementation of P. L. 96-296, 364 I. C. C. 464 (1980). For the most part, this interpretative ruling presented the Commission’s views on the substance of the new legislation, and established procedures whereby rate bureaus could submit existing agreements to the Commission for approval under the new standards. Before concluding, however, the ruling also addressed a problem the Commission had faced in regulating rate-bureau agreements even before Congress in 1980 amended the Reed-Bulwinkle Act: “the lack of definite remedies for proven rate bureau violations.” Id., at 499. The Commission announced its intention to fashion the following new remedy: “In addition to the possible remedy of withdrawal of immunity for serious and continuing violations, we proposed to adopt a standard providing that proof of significant violations of an approved agreement will result in tariff rejection. Allegations of lesser violations would subject the tariff item to suspension or investigation.” Ibid. The Commission subsequently explained how its new remedy would be implemented.2 The Commission intends to use the remedy to discipline motor carriers for substantial bureau agreement violations, such as unauthorized collusion or illegal bureau pressure on independent carriers. Brief for 2 The Commission explicated its proposed remedy in orders issued on January 28, 1981, and April 27, 1981. See Record 375, 381; Motor Carrier Rate Bureaus—Implementation of P. L. 96-296, 364 I. C. C. 921, 927. 358 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. Petitioners 24. Interested parties—for instance, shippers or other carriers—may file complaints of such violations with the Commission. Upon receiving such a complaint, the Commission’s Office of Consumer Protection will investigate the allegations, and, if a serious violation is discovered, the Office will refer the matter to the Commission for a full hearing. If the hearing confirms that a serious violation has occurred, the Commission has the authority to reject the affected tariffs. The Commission’s decision to reject is reviewable in federal court. Motor Carrier Rate Bureaus—Implementation of PL 96-296, 364 I. C. C. 921, 926 (1981). Rejection of an effective tariff applies retroactively, and can have serious consequences for affected motor carriers. Rejection renders the tariff void ab initio. Brief for Petitioners 7. As a result, whatever tariff was in effect prior to the adoption of the rejected rate becomes the applicable tariff for the period during which motor carriers charged the rejected tariff. Under 49 U. S. C. § 11705(b)(1), shippers that were charged the rejected tariff can then bring actions to recover the “overcharge,” which is the amount by which the rejected tariff exceeded the prior tariff. Alarmed by the prospect of overcharge liability, respondents, a group of motor-carrier rate bureaus, petitioned the United States Court of Appeals for the Eleventh Circuit to review the Commission’s new remedy. The Eleventh Circuit accepted respondents’ argument that the Commission lacks the power to reject effective tariffs. American Trucking Assn., Inc. v. United States, 688 F. 2d 1337 (1982). Because the Fifth Circuit previously had found the Commission to possess authority to reject effective tariffs in a different context, Aberdeen & Rockfish R. Co. v. United States, 682 F. 2d 1092 (1982), cert, pending, No. 82-707, we granted certiorari in this case to examine the Commission’s powers to reject effective tariffs. 462 U. S 1130 (1983). We now reverse the judgment of the Eleventh Circuit. ICC v. AMERICAN TRUCKING ASSNS., INC. 359 354 Opinion of the Court II The issue before us is narrow. Most aspects of the Commission’s authority to supervise motor-carrier rate-bureau agreements are not seriously challenged. For example, the Commission undisputedly has the power to terminate a rate-bureau agreement if the agreement itself fails to meet MCA guidelines or if bureau members persist in filing tariffs in violation of the terms of the agreement. 49 U. S. C. § 10706(f). Moreover, during the 30 days before a tariff proposed by a bureau member goes into effect, the Commission clearly has authority to reject the proposal if it was submitted in violation of a rate-bureau agreement.3 49 U. S. C. 3 Respondents contest this point. In an argument repudiated by the Eleventh Circuit, American Trucking Assn., Inc. v. United States, 688 F. 2d 1337, 1353 (1982), respondents contend that under § 10762(e) the Commission is empowered to reject a tariff only when the application therefor contains a formal, as opposed to a substantive, defect. We decline to read § 10762(e) so narrowly. As the District of Columbia Circuit noted in a similar context: “[Rejection] is not limited to defects of form. It may be used by an agency where the filing is so patently a nullity as a matter of substantive law, that administrative efficiency and justice are furthered by obviating any docket at the threshold rather than opening a futile docket.” Municipal Light Boards v. FPC, 146 U. S. App. D. C. 294, 299, 450 F. 2d 1341, 1346 (1971), cert, denied, 405 U. S. 989 (1972); see also Southern Motor Carriers Rate Conference, Inc. v. United States, 676 F. 2d 1374, 1377 (CA11 1982) (amended opinion); cf. United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U. S. 332, 347 (1956). Respondents also argue that, even if § 10762(e) extends to substantive defects, it should not apply to violations of rate-bureau agreements because the ICC’s sole remedy for such violations is termination of agreement approval under 49 U. S. C. § 10706(f). While the ICC has the option to terminate agreement approval under § 10706(f), see supra this page, Congress has expressly provided that powers enumerated in the Interstate Commerce Act do not preclude the Commission from taking other actions consistent with its statutory duties. § 10321(a). Since the Commission has a statutory duty to supervise rate-bureau agreements, see supra, at 356-357, we agree with the Eleventh Circuit that it is a perfectly reasonable exercise of administrative authority for the Commission to 360 467 U. S. OCTOBER TERM, 1983 Opinion of the Court § 10762(e). In addition, if the Commission suspects that a proposed tariff has been submitted in violation of a ratebureau agreement but no violation is immediately evident, the Commission may postpone the tariff’s effective date for up to seven months, and conduct an investigation into its lawfulness. §10708. If the investigation uncovers a ratebureau agreement violation before the suspension period expires, the Commission may reject the proposed tariff. Furthermore, the Commission may conduct an investigation into a tariff’s lawfulness at any time after it has gone into effect, and, if the tariff is found to have been the product of a bureau agreement violation, the Commission has authority to cancel the tariff and require that a reasonable and nondis-criminatory rate apply in the future. § 10704(b)(1). Whenever the Commission finds an effective tariff unlawful, injured parties can recover both damages under § 11705(b)(3) and whatever additional amounts the antitrust laws allow. Finally, the Commission has authority to impose civil and criminal penalties on rate agreement violators. §§ 11901(b), 11914(b). Our sole concern in this case is whether, in addition to the remedial powers listed above, the Commission has the authority to reject retroactively a tariff submitted in substantial violation of a rate-bureau agreement once that tariff has gone into effect.4 As a practical matter, the question is whether motor carriers that provide services based on effec- refuse to accept proposed tariffs submitted in violation of rate-bureau agreements. 688 F. 2d, at 1352-1353; cf. Board of Trade n. ICC, 646 F. 2d 1187, 1193 (CA7 1981) (Commission is obliged to reject such tariffs). 4 Prior to 1979, the Commission had no need to reject effective tariffs, because the Commission’s staff examined every filing prior to the effective date of the proposed tariff and, if an obvious defect was discovered, the tariff was rejected immediately. In 1979, however, budgetary cutbacks forced the Commission to abandon its comprehensive examination program. Since then, the Commission has reviewed only a random sampling of tariff filings, and tariffs with obvious defects inevitably are permitted to go into effect. See Southern Motor Carriers Rate Conference, Inc. v. United States, supra, at 1376-1377. ICC v. AMERICAN TRUCKING ASSNS., INC. 361 354 Opinion of the Court tive tariffs submitted in substantial violation of rate-bureau agreements can be held liable to injured parties for the entire amount by which their rates exceed the previous rates, and not just for the damages caused by the violation.6 A Since the Commission styled its new remedy as a rejection power, the most obvious source of the authority claimed by the Commission is 49 U. S. C. § 10762(e), which provides: “The Commission may reject a tariff submitted to it by a common carrier under this section if that tariff violates this section or regulation of the Commission carrying out this section.” At least superficially, § 10762(e) supports the Commission’s exercise of the power it asserts in this case. The subsection authorizes the rejection of tariffs, and does not distinguish between proposed and effective tariffs. Inasmuch as Congress in other contexts has expressly limited aspects of the Commission’s enforcement powers to proposed tariffs, e. g., 49 U. S. C. § 10708(a)(1) (suspension of proposed rates), the absence of limitation in § 10762(e) suggests that the Commission may reject both proposed and effective tariffs. However, the language of § 10762(e) and the structure of the Commission’s remedial authority under the Interstate Commerce Act (ICA), as amended, 49 U. S. C. § 10101 et seq., persuade us that Congress could not have meant § 10762(e) to confer on 6 The difference can be significant for carriers. In suits under 49 U. S. C. § 11705(b)(3), damages awards are limited to the extent to which an unlawful tariff was unreasonable or discriminatory. See Spencer Plant Foods, Inc. v. Atlantic Coast Line R. Co., 302 I. C. C. 799, 800 (1958); Boren-Stewart Co. v. Atchison, T. & S. F. R. Co., 196 I. C. C. 120, 125-126 (1933). Accordingly, if a motor carrier submits a large tariff increase in violation of its rate-bureau agreement, but the increase is neither unreasonable nor discriminatory, application of the Commission’s proposed remedy will expose the carrier to liabilities greatly in excess of the damages available under § 11705(b)(3). 362 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. the Commission a broad power to nullify effective tariffs retroactively. To begin with, the term “reject” connotes a refusal to receive at the threshold. To interpret the power to reject as a license to revoke a tariff that the Commission has already accepted would be contrary to the plain language of the subsection.6 For this reason, the District of Columbia Circuit has concluded that rejection provisions analogous to § 10762(e) do not extend to tariffs that have gone into effect. In a case involving the former Federal Power Commission’s rejection authority, Judge Leventhal likened rejection to “a motion to dismiss on the face of the pleading,” and declared rejection to be “‘a peremptory form of response to filed tariffs.’” Municipal Light Boards v. FPC, 146 U. S. App. D. C. 294, 299, 450 F. 2d 1341, 1346 (1971) (quoting F. Welch, Cases and Text on Public Utility Regulation 581 (1961)), cert, denied, 405 U. S. 989 (1972). In a subsequent case dealing with the former Civil Aeronautics Board’s rejection authority, another appellate panel approved of Judge Leventhal’s analysis and concluded: “[R]ejection is a regulatory device properly used only prior to a tariff’s effective date.” Delta Air Lines, Inc. v. CAB, 177 U. S. App. D. C. 100, 121, 543 F. 2d 247, 268 (1976) (emphasis in original). A further reason to believe that § 10762(e) does not extend to effective tariffs is the difference between the procedural safeguards incorporated into § 10762(e) and those that Congress built into remedies clearly designed to reach effective tariffs. On its face and as applied by the Commission, § 10762(e) offers affected carriers no 6 Section 10762(e)’s placement within the ICA lends credence to the view that rejection is a summary power to be used at the outset of the rate-filing process. Section 10762(e) appears in a section regulating the manner in which new tariffs are to be filed with the Commission prior to their effective date. By authorizing the Commission to “reject a tariff ... if that tariff violates this section,” § 10762(e) seems focused on the Commission’s authority to turn away a tariff submission at the time of filing. ICC v. AMERICAN TRUCKING ASSNS., INC. 363 354 Opinion of the Court opportunity to challenge a decision to reject. Rejection is peremptory, and the carrier’s only recourse is to submit a corrected tariff. On the other hand, § 10704(b), which deals with the Commission’s authority to cancel effective tariffs and to prescribe new rates for the future, provides that the Commission must conduct a full hearing before taking any action. It would be bizarre, to say the least, to interpret § 10762(e) to give the Commission peremptory authority to void effective rates retroactively, when § 10704(b) places procedural constraints on the Commission’s authority to take the less drastic step of modifying effective tariffs prospectively. Similarly, reading § 10762(e) to give the Commission unbridled discretion to reject effective tariffs at any time would undermine restraints placed by Congress on the Commission’s power to suspend a proposed tariff pending investigation. See § 10708; supra, at 360. The Commission’s power to suspend is limited to the seven months after the proposed tariff’s effective date, and final action in a suspension-investigation proceeding can be taken only after a full hearing. §§ 10708(a)(2), (b). Were we to read § 10762(e) as broadly as the Commission proposes, the temporal and procedural constraints of § 10708 would be nugatory, since the Commission could rely on its rejection powers to void a regulation at any time and without any procedural safeguards. The language of § 10762(e) is admittedly ambiguous, and, in the ordinary course, we might defer to the Commission’s view that the subsection should be given a liberal interpretation. However, in this case, the Commission’s interpretation is unsupported by a natural reading of the provision and inconsistent with the remedial structure established by Congress.7 Under these circumstances, we cannot defer ’Previous decisions of this Court coupled with past rulings of the Commission cast further doubt on the proposition that § 10762(e) authorizes the Commission to nullify any effective tariff containing either 364 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. to the Commission’s interpretation, and we accept the view of the Eleventh Circuit that § 10762(e) does not license the Commission to reject effective tariffs. B Although we conclude that § 10762(e) does not bestow on the Commission a general authority to reject effective tariffs, this conclusion does not resolve the dispute. The Commission’s authority under the Interstate Commerce substantive or formal defects. In Berwind-White Coal Mining Co. v. Chicago & Erie R. Co., 235 U. S. 371 (1914), and again in Davis v. Portland Seed Co., 264 U. S. 403 (1924), we stressed the importance of common carriers’ being able to rely on effective tariffs on file with the Commission. As the Commission itself once recognized, these cases “strongly sugges[t] that recovery for a tariff’s failure to comply with a formal requirement may be limited to the amount of damage suffered by the shipper.” Brief for Federal Respondents in Opposition in Nitrochem, Inc. v. ICC, 0. T. 1981, No. 81-1205, p. 6. Reading § 10762(e) to authorize retroactive rejection of effective tariffs would significantly undermine the repose that carriers have traditionally been permitted to enjoy once their tariffs have been accepted by the Commission. Indeed, until the recent past, the Commission generally shared the view that, though a tariff might have been submitted in a technically deficient manner, the tariff was not a nullity and a shipper’s recovery was limited to actual damages. See Boren-Stewart Co. v. Atchison, T. & S. F. R. Co., 196 I. C. C. 120 (1933); see also Acme Peat Products, Ltd. v. Akron, C. & Y. R. Co., 277 I. C. C. 641, 644 (1950) (“Where tariffs are tendered to and accepted by the Commission, the rates therein become applicable, even though technically they should have been rejected upon tender”). The few instances in which the Commission has nullified effective tariffs have involved cases of tariffs mistakenly filed with the Commission by carriers outside the Commission’s jurisdiction. See Acme Fast Freight, Inc., et al., Common Carrier Application, 17 M. C. C. 549 (1939), sustained, 30 F. Supp. 968 (SDNY), aff’d, 309 U. S. 638 (1940) (per curiam); Mercer Valley R. Co. v. Pennsylvania R. Co., 69 I. C. C. 233 (1922). Only in 1978 did the Commission propose to nullify an effective tariff of a carrier within the Commission’s jurisdiction. National Assn, of Specialized Carriers, Inc., Agent-Show Cause and Strike Order, I. C. C. Order No. 36870 (Apr. 11, 1978). While an agency is free to change its mind about the meaning of an enabling Act, that the Commission has so long adhered to a narrow view of its rejection authority has some probative value for our decision today. ICC v. AMERICAN TRUCKING ASSNS., INC. 365 354 Opinion of the Court Act is not bounded by the powers expressly enumerated in the Act. 49 U. S. C. § 10321(a). As we have held in the past, the Commission also has discretion to take actions that are “‘legitimate, reasonable, and direct[ly] adjunct to the Commission’s explicit statutory power.’” Trans Alaska Pipeline Rate Cases, 436 U. S., at 655 (quoting United States v. Chesapeake & Ohio R. Co., 426 U. S. 500, 514 (1976)). We have recognized that the Commission may elaborate upon its express statutory remedies when necessary to achieve specific statutory goals. In this case, the Commission argues that the retroactive rejection of rate-bureau tariffs is simply an adjunct to the Commission’s § 10762(e) rejection authority, and that, to the extent that there is an elaboration on that authority, it is necessary to ensure compliance with rate-bureau agreements. In these narrow circumstances, we agree. The doctrine of ICC discretion arose out of a recognition that, since drafters of complex ratemaking statutes like the ICA neither can nor do “include specific consideration of every evil sought to be corrected,” the absence of express remedial authority should not force the Commission “to sit idly by and wink at practices that lead to violations of [ICA] provisions.” American Trucking Associations, Inc. v. United States, 344 U. S. 298, 309-310, 311 (1953). The doctrine originated in cases in which we accorded the Commission latitude to interpret its statutory powers in a reasonable manner. See, e. g., American Trucking Associations, Inc. v. United States, supra; cf. Permian Basin Area Rate Cases, 390 U. S. 747, 774-777 (1968) (comparable construction of the authority of the FPC under the Natural Gas Act). More recently, however, we have applied the doctrine to sustain the Commission’s efforts to place reasonable conditions on its acceptance of proposed tariffs. For instance, in United States v. Chesapeake & Ohio R. Co., supra, we upheld a decision by the Commission to approve tariff increases only on the condition that carriers spend a specific portion of the increase on capital improvements and deferred maintenance. Although 366 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. the IC A provides the Commission no express authority to dictate the manner in which carriers expend their revenues, we held that the Commission’s conditions of approval were sufficiently tied to the ICA’s statutory goal of safeguarding the Nation’s transportation system to withstand judicial review. In Trans Alaska Pipeline Rate Cases, supra, this Court again addressed the Commission’s discretionary authority to condition tariff approval in a manner reasonably tied to statutory objectives. In that case, the Commission had extracted from pipeline owners, in exchange for approval of a tentative tariff schedule, the owners’ promise to refund whatever portion of the tentative rates the Commission subsequently found to be unreasonable. Claiming this action was unauthorized under the ICA, the pipeline owners argued that the Commission was required to choose between either suspending the proposed tariffs for an investigation into their reasonableness or approving the tariffs subject to prospective modification at some future date. Even though we agreed that the Commission lacks explicit authority to order refunds on tariffs that have gone into effect, we declined to interpret the ICA as placing the Commission in the dilemma posited by the pipeline owners. Suspension would have delayed the opening of the Alaska pipeline, whereas unconditional approval of the proposed rates might have unjustly enriched the pipeline owners. Since both alternatives were inconsistent with the policies underlying the ICA, we concluded that the Commission was justified in transcending its explicit remedial authorities and conditioning the approval of the Alaska-pipeline tariffs on a commitment to refund unreasonably high rates. The remedial authority at issue in this case consists of another effort by the Commission to place a condition on the approval of a proposed tariff. In effect, the Commission has informed all motor carriers submitting proposed tariff ICC v. AMERICAN TRUCKING ASSNS., INC. 367 354 Opinion of the Court increases that the Commission will approve those increases subject to the condition that the carriers may be called upon to disgorge the increases if the Commission later discovers that the tariffs were submitted in substantial violation of a rate-bureau agreement. This retroactive rejection of tariffs is akin to the remedial authorities that Congress expressly delegated the Commission. A primary responsibility of the Commission is to supervise and approve tariffs submitted under the ICA. Under 49 U. S. C. § 10762(e), the Commission is expressly empowered to reject tariffs prior to their effective date. The Commission’s proposal to reject effective tariffs submitted in substantial violation of rate-bureau agreements simply extends the Commission’s express rejection authority so that the Commission may adequately supervise motor-carrier rate-bureau agreements. The question presented by this case is whether fashioning this remedy falls within the Commission’s authority to modify express remedies in order to achieve legitimate statutory purposes. To lie within the Commission’s discretionary power, the proposed remedy must satisfy two criteria: first, the power must further a specific statutory mandate of the Commission, and second, the exercise of power must be directly and closely tied to that mandate. The Motor Carrier Act of 1980 presents a statutory basis for the Commission to approve motor-carrier tariffs on the condition that the Commission may later nullify increases found to have been submitted in substantial violation of ratebureau agreements. The legislative history of the Act is clear that, beyond the bounds of immunity granted in § 10706(b)(3), Congress wanted the forces of competition to determine motor-carrier tariffs.8 The function of the Commission’s proposed remedy is to ensure that motor carriers 8 See H. R. Rep. No. 96-1069, pp. 27-28 (1980); 126 Cong. Rec. 7777 (1980) (statement of Sen. Cannon). 368 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. collude only as permitted by the MCA guidelines. The conditional approval of motor-carrier tariffs with concomitant threat of overcharge liability provides strong incentives for motor carriers to abide by the terms of their rate-bureau agreements. Since § 10706(b)(3) prescribes the guidelines for rate-bureau agreements, this remedy encourages motor carriers to limit their collective activities to the areas that Congress described in the statutory guidelines. There can be little doubt that Congress intended for the Commission to play a key role in holding carriers to the § 10706(b)(3) guidelines. Section 10706(b)(3), like the Reed-Bulwinkle Act before it, grants motor carriers immunity from the antitrust laws. To some degree, § 10706(b)(3) is self-enforcing, because bureau members will strive to stay within its guidelines in order to avoid the antitrust liability that transgressions could precipitate. However, the procedures governing the administration of § 10706(b)(3) demonstrate that Congress envisioned that the Commission—and not the threat of antitrust liability—would be the primary enforcer of the guidelines. It is, after all, the Commission that decides which bureau agreements conform to the dictates of § 10706(b)(3). 49 U. S. C. § 10706(b)(2). It is the Commission that is empowered to terminate or suspend rate-bureau agreements. §§ 10706(f), (h). And, it is the Commission that may impose conditions on rate-bureau agreements in order to further National Transportation Policy. § 10706(b)(2).9 9 As respondents stress, Congress passed § 10706(b)(3) partially to restrain the Commission from exercising too much discretion in dictating the terms of rate-bureau agreements. See supra, at 356-357. However, the limitations on the Commission’s power embodied in the MCA are all directed at the Commission’s substantive authority to set the criteria for acceptable rate-bureau agreements. No provision of the Act limits the Commission’s remedial authority to deal with motor carriers that operate in clear violation of approved agreements. To the contrary, the House Report on the MCA expressly states that the legislation will not diminish the Commission’s enforcement authority. See H. R. Rep. No. 96-1069, supra, at 40. ICC v. AMERICAN TRUCKING ASSNS., INC. 369 354 Opinion of the Court More difficult to answer is the question whether the Commission’s conditional approval of motor-carrier tariffs is a means of policing rate-bureau agreements sufficiently direct and close to the Commission’s statutory mandate to warrant approval. The Commission offers two imbricated justifications for its new remedy. First, the Commission argues that, without the potential for overcharge damages awards, shippers will not have sufficient incentive to report ratebureau violations to the Commission or to file antitrust suits on their own. Second, the Commission claims that it must have the power to approve bureau tariffs conditionally because the other remedial tools at its disposal are inadequate to enforce compliance with bureau agreements. In the Commission’s view, the threshold remedies of peremptory rejection of proposed rates and of suspension of rates pending investigation are inadequate to cope with substantial violations, which are typically shrouded in secrecy and undetectable on the face of a tariff proposal. If a substantial bureau violation comes to light once a tariff is in effect, the Commission’s only statutory remedy is to declare the tariff in violation of the IC A and to prescribe a new rate for the future. Admittedly, such a declaration and prescription will render the offending carriers liable for damages actions brought by injured shippers, but the size of the damages awards would, in the Commission’s opinion, provide insufficient incentive to keep carriers faith-ftil to their bureau agreements.10 Similarly, the Commission maintains that its penalty authority is too weak to guarantee compliance with bureau agreements.11 But the very potency of overcharge is what makes the nullification of motor-carrier tariffs a troubling exercise of Com 10 See n. 5, supra. 11 In another field, the inadequacy of an agency’s express statutory authority might be seen as evidence that Congress intended for the agency not to possess more adequate powers. However, this inference cannot be drawn in this area because 49 U. S. C. § 10321(a) provides: “Enumeration of a power of the Commission in this subtitle does not exclude another power the Commission may have in carrying out this subtitle.” 370 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. mission authority. For a motor carrier, overcharge liability may be ruinous. Overcharge awards can easily surpass the damages for which carriers have historically been liable under § 11705(b)(3), and may even exceed the treble damages to which the carriers are vulnerable under the antitrust laws. Indeed, the effect of the Commission’s proposed new remedy is to convert the ICC into the Federal Government’s most potent enforcer of the antitrust laws, albeit for the limited purpose of ensuring compliance with the guidelines of § 10706(b)(3).12 Nevertheless, we agree with the Commission that its new remedy is a justifiable adjunct to its express statutory mandate. The nullification of effective tariffs submitted in violation of rate-bureau agreements is directly aimed at ensuring that motor carriers comply with the guidelines established by Congress in the MCA. Consistent with congressional intent, the remedy stimulates competitive pricing beyond the bounds of the motor-carrier immunity granted in § 10706(b)(3). Moreover, the structure of the MCA and its legislative history establish that Congress expected that the Commission would play a key role in holding carriers to the § 10706(b)(3) guidelines, and it is within the Commission’s discretion to decide that the only feasible way to fulfill its mandate is to condition approval of motor-carrier tariffs on compliance with approved rate-bureau agreements. Our concern over the harshness of this new remedial authority is lessened by the significant steps the Commission has taken to ensure that the penalty will not be imposed unfairly. Under the Commission’s proposed scheme, effective tariffs will be nullified only upon findings of substantial violations of rate-bureau agreements. The guidelines for antitrust immunity set out in § 10706(b)(3) are of such a nature 12 Under some circumstances, overcharge liability might exceed the maximum penalty for criminal violations of the antitrust laws, which is $1 million. See 15 U. S. C. § 1 et seq. ICC v. AMERICAN TRUCKING ASSNS., INC. 371 354 O’Connor, J., dissenting that carriers who submit tariffs in substantial violation of agreements will be aware of their transgressions. So concerns that the new remedy will be used to penalize carriers that inadvertently transgress rate-bureau agreements are largely unfounded. Moreover, the risk that the Commission will err in finding substantial violations is lessened by the procedural safeguards of full hearings and judicial review that are built into the Commission’s proposal. Finally, the Commission has reserved the discretion to withhold the sanction of retroactive rejection, should the circumstances of a violation counsel lenity.13 Ill For the foregoing reasons, we conclude that the Commission does not exceed its authority by nullifying effective motor-carrier tariffs submitted in substantial violation of rate-bureau agreements. Accordingly, the judgment of the Eleventh Circuit is reversed, and the case is remanded to the Court of Appeals for further proceedings consistent with this opinion. It is so ordered. Justice O’Connor, with whom Justice Blackmun, Justice Powell, and Justice Stevens join, dissenting. This case presents the question whether the Interstate Commerce Commission (Commission) may nullify a motor carrier tariff at any time after it has become effective. Such nullification renders the carrier liable to shippers for the amount by which the rejected rate exceeds the last rate the carrier has lawfully filed. The Court quite correctly reasons 13 Although it is difficult to know how the Commission will exercise this discretion, in the only analogous case to date, which happened to involve a railroad rate bureau, the Commission decided that the circumstances of the rate-bureau agreement violation did not warrant rejection. See Transit on Wheat Between Reshippinq Point and Destination, 365 I. C. C. 890 (1982). 372 OCTOBER TERM, 1983 O’Connor, J., dissenting 467 U. S. that 49 U. S. C. § 10762(e) does not authorize the Commission to reject effective tariffs. See ante, at 361-364. Reading § 10762(e) to authorize such action would indeed give the Commission an “unbridled discretion” that Congress did not intend it to have. See ante, at 363. However, after having correctly rejected § 10762(e) as a basis for the proposed rejection power, the Court then mysteriously concludes that the power is within the Commission’s “discretionary power” to ensure that shippers adhere strictly to their approved rate bureau agreements. Ante, at 367. I frankly do not understand how this alternative “discretionary power” rationale better reins in the Commission’s discretion. Accordingly, I dissent. I The Court starts with the proposition that the enumeration of certain Commission powers in the Interstate Commerce Act, as amended, 49 U. S. C. § 10101 et seq., does not necessarily exclude others not expressly listed. See ante, at 364-365. I have no quarrel with that proposition. Like most agencies, the Commission is authorized to prescribe regulations to carry out its statutory duties. 49 U. S. C. § 10321(a). The Commission’s efforts to interpret and implement the tariff filing provisions therefore deserve considerable judicial deference. See American Trucking Associations, Inc. v. United States, 344 U. S. 298, 311 (1953); see generally United States v. Chesapeake & Ohio R. Co., 426 U. S. 500 (1976); Trans Alaska Pipeline Rate Cases, 436 U. S. 631 (1978). But this rule of deference has never been equated with a “discretionary power” in the Commission to place conditions on its acceptance of proposed tariffs. I think the Court misreads its prior cases in finding such authority today. The Court did not, as today’s opinion asserts, approve the concept of “discretionary power” of the Commission in United States v. Chesapeake & Ohio R. Co., supra. In that case, the Commission proposed to allow an immediate rate in- ICC v. AMERICAN TRUCKING ASSNS., INC. 373 354 O’Connor, J., dissenting crease on the condition that the benefited rail carriers devote to certain designated uses the additional revenues earned during the 7-month period the rates would otherwise have been suspended. Though the Commission had no express power to place conditions on the use of these revenues, the Court concluded that qualifying immediate acceptance in this manner was “a legitimate, reasonable, and direct adjunct [of] the Commission’s explicit statutory power to suspend rates pending investigation.” 426 U. S., at 514. Delaying implementation of the new tariffs would only have frustrated Congress’ desire to improve the condition of the railroads. Thus, the Commission’s decision to condition its acceptance on use of the moneys earned during the 7-month suspension period was “an alternative tailored far more precisely to the particular circumstances presented.” Ibid. Nor did the Trans Alaska Pipeline Rate Cases, supra, approve any principle of inherent Commission authority. In these cases, the Commission proposed to allow the owners of the Trans Alaska Pipeline System to implement immediately rates on condition that the carriers refund any amounts collected during the period the rates would otherwise have been suspended and later determined to be unlawful. The Court sustained the Commission’s efforts, finding that the condition was a power “ ‘ancillary’ to [the] suspension power” and that immediate implementation would further Congress’ policy of early development and delivery of oil from Alaska’s North Slope. 436 U. S., at 654-655. Again, the Court deferred to the Commission’s efforts, but only because the Commission had implemented an alternative that was carefully tied to the statutory suspension power and narrowly tailored to the particular circumstances presented. Id., at 655. Thus, Chesapeake & Ohio R. Co. and Trans Alaska Pipeline Cases support neither the remedy the Commission has proposed to implement here nor the power on which the Court suggests that it can be based. In contrast to the conditions imposed in those cases, the Commission’s proposed 374 OCTOBER TERM, 1983 O’Connor, J., dissenting 467 U. S. retroactive rejection power is not a “direct adjunct” of the statutory suspension power. The Commission claims the power retroactively to reject a tariff at any time, not just during the 7-month period it could otherwise have suspended and investigated the proposed rates. More importantly, neither case even mentions the principle of “discretionary power” on which the Court today relies. Rather, the Court in both cases gave traditional judicial deference to the Commission’s use of its express statutory powers. The idea of a boundless “discretionary power” was simply not considered. II Perhaps recognizing the open-ended character of the regulatory principle it announces, the Court suggests that two limiting criteria will cabin the Commission’s discretionary authority. First, the Court proposes that the authority must be exercised to further a specific statutory mandate. Ante, at 367. Second, the Court proposes that the exercise of the authority must be directly and closely tied to that mandate. Ibid. Whatever the merits of these criteria, they definitely are not satisfied in the circumstances of this case. A The Court points to the Motor Carrier Act of 1980, Pub. L. 96-296, 94 Stat. 793, as the statutory mandate that the Commission’s retroactive rejection authority is being used to further. According to the Court, the Congress enacting this legislation left to the Commission discretionary authority to fashion remedial powers necessary to ensure that shippers adhere strictly to their approved rate bureau agreements. Ante, at 368. However, an examination of the history behind this legislation unambiguously refutes this view. Prior to the enactment of the Motor Carrier Act, the Commission had been attempting to curtail drastically the motor carriers’ opportunities to engage in collective ratemaking. In one rulemaking proceeding, for example, the Commission had proposed exactly what Congress itself had earlier re- ICC v. AMERICAN TRUCKING ASSNS., INC. 375 354 O’Connor, J., dissenting jected—namely, to apply to motor carrier rate bureaus the severe restrictions on collective ratemaking authority statutorily imposed on rail rate bureaus by the Railroad Revitalization and Regulatory Reform Act of 1976. See 43 Fed. Reg. 1809 (1978). In another instance, the Commission had proposed to review every individual ratemaking agreement to determine if continued approval would be warranted under new Commission standards. See id., at 1666. And in 1979, when budgetary constraints and increased filings caused it to change its tariff monitoring practices, the Commission twice asserted that retroactive tariff rejection was necessary to combat anticompetitive practices in the motor carrier industry. See 44 Fed. Reg. 58511, 58512, 60122, 60123-60124 (1979). The 1980 Congress shared the Commission’s desire to increase competition in the motor carrier industry, but it rejected the Commission’s attempts to create that competition on its own initiative. Well aware that the “Commission ha[d] recently embarked upon a series of reviews of rate bureau agreements to determine whether they should be continued and, if so, under what conditions,” H. R. Rep. No. 96-1069, p. 27 (1980), Congress made clear that it wanted to reduce the Commission’s regulatory authority over motor carrier rate bureau practices. “[I]n order to reduce the uncertainty felt by the Nation’s transportation industry, the . . . Commission [is] given explicit direction for regulation of the motor carrier industry and well-defined parameters within which it may act pursuant to congressional policy; . . . the . . . Commission should not attempt to go beyond the powers vested in it by the Interstate Commerce Act . . . and other legislation enacted by Congress.” 94 Stat. 793. Senator Cannon, one of the sponsors of the 1980 Act, explained: “[L]egislation is desperately needed to clarify the existing regulatory uncertainty that plagues the industry and those who care about it.. . . This bill gives specific direc 376 OCTOBER TERM, 1983 O’Connor, J., dissenting 467 U. S. tion to the Interstate Commerce Commission and we expect those directions to be followed. Where the Commission is to be given more discretion, it is clear from the statute, but in most cases, the discretion is eliminated.” 126 Cong. Rec. 7777 (1980). Representative Harsha gave a similar explanation to his colleagues in the House: “For too long Congress has basically been on the sidelines, while the Interstate Commerce Commission exercised unduly wide discretion in regulating the Nation’s motor carrier industry... . [I]n the past several years, it has made changes in the regulatory system on its own initiative[,] in the absence of congressional guidance, if not consultation. “It is not the intent of the committee, and I am certain that it is not the will of Congress, that while we reduce the amount of needless regulation in the trucking industry, we increase the regulatory powers of ICC bureaucrats. “Therefore, [the bill] give[s] clear guidelines to the ICC on how to administer the law. In so doing, the committee expects the Commission to stay within the explicit powers invested by the new statute. ...” Id., at 15585. These sentiments were echoed in the Committee Reports of each congressional chamber. See H. R. Rep. No. 96-1069, supra, at 29; S. Rep. No. 96-641, p. 31 (1980). To be sure, Congress wanted the Commission to “retain and enforce existing regulations as to the processing of loss, damage, and overcharge claims . . . .” H. R. Rep. No. 96-1069, supra, at 40. But Congress expressed a strong disapproval of all of the Commission’s pre-1980 regulatory innovations, and the retroactive rejection remedy had been prominent among them. See 44 Fed. Reg. 60122, 60123- ICC v. AMERICAN TRUCKING ASSNS., INC. 377 354 O’Connor, J., dissenting 60124 (1979); see also Motor Carrier Rate Bureaus—Implementation ofP. L. 96-296, 3641. C. C. 464, 503 (1980) (Commissioner Gilliam, concurring); 45 Fed. Reg. 55742 (1980) (Commissioner Stafford, dissenting). Thus, while the 1980 Congress may not have intended to diminish the Commission’s existing enforcement authority, there can be no doubt about its intention to prevent the Commission from unilaterally enlarging its own discretionary powers. B The Court contends, nevertheless, that the rejection power is directly and closely tied to 49 U. S. C. § 10762(e). Ante, at 369-371. On this view, nullification of effective tariffs is necessary both to ensure that motor carriers comply with the guidelines established by Congress and to stimulate competitive pricing beyond the bounds of the motor-carrier immunity granted in § 10706(b)(3). Though resulting awards could easily surpass the damages for which carriers may be held liable under the antitrust laws, and could therefore convert the Commission into the Federal Government’s most potent antitrust enforcer, the Court concludes that deference to the Commission’s efforts to enforce § 10706(b)(3), is not inappropriate. Ante, at 370-371. I must disagree. Even if Congress had left the Commission discretion to fashion some new remedies to enforce § 10706(b)(3), there is much reason to believe that the retroactive rejection power could not properly be among them. As previously noted, the Commission proposed to use this same retroactive rejection remedy for similar purposes prior to the 1980 legislation. See supra, at 375. The Commission was concerned, because of budgetary constraints and increased tariff filings, that it could not catch all improper tariffs and that carriers would have incentives to exceed their limited immunity from the antitrust laws. Ibid. The 1980 Congress was well aware of the Commission’s concerns and of the remedies the Commission then had available to it. Yet Congress did not include 378 OCTOBER TERM, 1983 O’Connor, J., dissenting 467 U. S. the rejection power in its comprehensive restructuring of the rate bureau regulatory system. Rather, it emphasized that it did not want to increase the power of the Commission. Perhaps the Commission is correct in asserting that shippers lack sufficient incentives to ensure optimal enforcement of the antitrust laws. But that is a gap Congress obviously wanted the Department of Justice, not the Commission, to fill. See 364 I. C. C., at 503 (Commissioner Gilliam, concurring); 46 Fed. Reg. 2295 (1981) (Commissioner Clapp, concurring). Making the Commission the most potent enforcer of the Nation’s antitrust laws is hardly compatible with the congressional antagonism toward the Commission’s specific pre-1980 deregulation initiatives. Indeed, it is easy to see why Congress would not have included a retroactive rejection power among the arsenal of powers available to the Commission. Part of the Motor Carrier Act’s purpose was, as the Commission asserts, to limit the rate bureaus’ freedom to engage in collusive behavior. Conversely, however, the 1980 Act was equally intended to promote certainty in industry pricing and to protect carriers’ reliance on filed tariffs. In the motor carrier industry, goods are shipped, revenues collected, and business plans formulated in reliance on these tariffs. In 1980, Congress apparently continued to believe that effective national transportation policy requires that carriers be able to rely on their filed rates and know that liability for charging those rates will result only if shippers show actual damage. Congress has deliberately encouraged carriers, within limits, to set prices collectively, and has insulated them from the proscriptions of the antitrust laws when they do so. The rejection power, by contrast, confronts carriers with a large and uncertain liability and discourages the collective price setting clearly contemplated by the Act. The rejection power “create[s] a legalized, but endless, chain of departures from [filed] tariff [s];. . . destroy[s] the equality and certainty of rates, and, contrary to the statute, . . . make[s] the carrier liable for ICC v. AMERICAN TRUCKING ASSNS., INC. 379 354 O’Connor, J., dissenting damages beyond those inflicted and to persons not injured.” Davis v. Portland Seed Co., 264 U. S. 403, 421 (1924). The power is, therefore, incompatible with collective aspects of the rate-setting scheme Congress intended to promote. Ill What the Commission really seeks is a remedy that is not statutorily authorized but that is alleged to be administratively needed. The need, of course, is far from clear, given the impressive array of prescriptive powers, overcharge assessments, damages remedies, and civil and criminal fines at the Commission’s disposal. See 49 U. S. C. §§ 11705(b) (l)-(3), 10704, 11901(b), 11914(b). If the Commission believes that it needs additional remedial power to enforce the rate bureau provisions, it should seek such power from Congress. But this Court is no more authorized than is the Commission to rewrite the law. Since that is what today’s decision allows the Commission to do, I respectfully dissent. 380 OCTOBER TERM, 1983 Syllabus 467 U. S. ALUMINUM COMPANY OF AMERICA ET AL. v. CENTRAL LINCOLN PEOPLES’ UTILITY DISTRICT ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 82-1071. Argued January 9, 1984—Decided June 5, 1984 Since enactment of the Bonneville Project Act of 1937 (Project Act), the Bonneville Power Administration (BPA) has marketed low-cost hydroelectric power generated by a series of dams along the Columbia River. BPA sells two types of power: “firm” power (energy that BPA expects to produce under predictable streamflow conditions) and “nonfirm” power (energy that is in excess of firm power and is provided only when such excess exists). BPA’s customers include three groups: (1) “public bodies and cooperatives,” which include public utilities and which are “preference” customers to whom BPA is required to give priority over nonpreference customers; (2) private, investor-owned utilities (lOUs); and (3) direct-service industrial customers (DSIs), which purchase power directly from BPA instead of through a utility. lOUs and DSIs are “nonpreference” customers. As demand for power increased to exceed BPA’s generating capability, Congress moved to avert a customer struggle for BPA power by enacting in 1980 the Pacific Northwest Electric Power Planning and Conservation Act (Regional Act). Section 5(a) of that Act requires all power sales under the Act to be subject to the preference and priority provisions of the Project Act. Section 5(d)(1)(B) requires BPA to offer each existing DSI customer a new contract that provides “an amount of power” equivalent to that to which such customer was entitled under its existing 1975 contract. Section 10(c) provides that the Act does not “alter, diminish, abridge, or otherwise affect” federal laws by which the public utilities are entitled to preference. Pursuant to the Regional Act, the Administrator of BPA offered new contracts to DSI customers for the same amount of power specified by the existing 1975 contracts, but, based upon his interpretation of the statute and its legislative history, concluded that terms of the power sales need not be the same as they had been under the 1975 contracts. Those contracts had provided that a portion of the power supplied to DSIs could be interrupted “at any time,” thus making that portion subject to the preference provisions of the Project Act and enabling preference utilities to interrupt it whenever they wanted nonfirm power. The Administrator concluded that such a provision in the new contracts would conflict with the ALUMINUM CO. v. CENTRAL LINCOLN UTIL. DIST. 381 380 Syllabus directive of § 5(d)(1)(A) of the Regional Act that sales to DSIs should provide a portion of the Administrator’s reserves for firm power loads. Accordingly, the new contracts allowed power interruption only to protect BPA’s firm power obligations, thus reducing the amount of nonfirm power available to preference utilities. Respondent preference utilities challenged the new contracts by a petition for review in the Court of Appeals, claiming that those contracts violated the preference accorded to nonfirm power under the 1975 contracts, that §§ 5(a) and 10(c) of the Regional Act required that DSI power be interruptible under the new contracts on the same terms as it was under the 1975 contracts, and that the conditions in the new contracts provided DSIs with a greater “amount of power” than the 1975 contracts, in violation of § 5(d)(1)(B) of the Regional Act. The Court of Appeals agreed and found the Administrator’s interpretation of the Regional Act unreasonable. Held: 1. Giving the Administrator’s interpretation of the Regional Act the deference it is due, his interpretation is a fully reasonable one, particularly in the absence of any statutory provision affirmatively indicating the contrary. It is reasonable to conclude that the statutory directive that the new contracts be for the same “amount of power” as the 1975 contracts requires simply that the new contracts involve the same number of kilowatts, and, contrary to respondents’ argument, does not preclude curtailing the situations in which power can be interrupted. Nor is there any merit to respondents’ argument that the terms of the new contracts conflict with §5(a) of the Regional Act. While that section preserves the priority and preference provisions of the Project Act, that preference system merely determines the priority of different customers when the Administrator receives “conflicting or competing” applications for power that he is authorized to allocate. The new contracts offered to the DSIs are not part of such an administrative allocation of power; the power sold pursuant to those contracts is allocated directly by statute. The Project Act’s preference provisions, as incorporated in the Regional Act, therefore simply do not apply to the contracts that the latter Act requires BPA to offer. Pp. 389-395. 2. The legislative history of the Regional Act confirms the Administrator’s interpretation. That history shows that Congress paid specific attention to power sales to DSIs, and consulted BPA on the relationship between those sales and the Act’s broader purposes. There is no indication that Congress intended the new DSI contracts to have provisions governing interruptibility that were the same as in the 1975 contracts. Pp. 396-398. 3. Because the Regional Act does not comprehensively establish the terms on which power is to be supplied to DSIs under the new contracts, 382 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. the Administrator has broad discretion to negotiate them. Sales to DSIs under that Act are intricately related to the “exchange” program established by the Act to reduce the disparity existing under the Project Act whereby consumers served by public utilities enjoyed much cheaper power than consumers served by lOUs. Pp. 398-400. 686 F. 2d 708, reversed and remanded. Blackmun, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, White, Marshall, Powell, Rehnquist, and O’Connor, JJ., joined. Stevens, J., filed a dissenting opinion, post, p. 400. M. Laurence Popofsky argued the cause for petitioners. With him on the briefs were Eric Redman, Peter A. Wald, and Dian M. Grueneich. Jerrold J. Ganzfried argued the cause for the federal respondents under this Court’s Rule 19.6, urging reversal. With him on the briefs were Solicitor General Lee, Assistant Attorney General McGrath, Deputy Solicitor General Claiborne, and Bruce G. Forrest. Jay T. Waldron argued the cause for respondents Central Lincoln Peoples’ Utility District et al. With him on the brief was Donald A. Haagensen. James W. Durham, Alvin Alexanderson, and Robert T. O’Leary filed a brief for respondents Portland General Electric Co. et al. Robert M. Greening, Jr., filed a brief for respondent Public Power Council.* Justice Blackmun delivered the opinion of the Court. Since enactment of the Bonneville Project Act of 1937, 50 Stat. 731, 16 U. S. C. §832 et seq. (Project Act), the Bonneville Power Administration (BPA) has marketed low-cost hydroelectric power generated by a series of dams along the Columbia River. Although §4(a) of the Project Act, 16 *Briefs of amici curiae urging affirmance were filed for the American Public Power Association et al. by Lee C. White and Grace Powers Monaco; and for International Paper Co. et al. by Donald P. Swisher and Allan M. Garten. ALUMINUM CO. v. CENTRAL LINCOLN UTIL. DIST. 383 380 Opinion of the Court U. S. C. §832c(a), directs the BPA Administrator to “give preference and priority to public bodies and cooperatives” when selling its power, BPA for many years enjoyed a surplus of power that allowed it to satisfy the needs of all customers in the region. As demand for power increased to exceed BPA’s generating capability, however, the allocation of low-cost federal power became an issue of significant area concern. In 1980, Congress moved to avert what appeared to be an emerging customer struggle for BPA power by enacting the Pacific Northwest Electric Power Planning and Conservation Act, 94 Stat. 2697, 16 U. S. C. §839 et seq. (Regional Act). That Act required BPA to offer new contracts to its several customers. Some of the respondents1 brought this suit to challenge the new contracts that BPA signed with certain customers. The United States Court of Appeals for the Ninth Circuit held that the contracts violated the statute. We now reverse that judgment, and remand the case to the Court of Appeals for further proceedings. I Before discussing the Regional Act’s provisions that give rise to the dispute, certain aspects of hydroelectric power generation and the Project Act’s allocation scheme must be explained. Because the amount of power generated by BPA depends on streamflow in the Columbia River system, BPA cannot predict with accuracy the amount of power that it can generate. Accordingly, BPA historically has sold two types of power. “Firm power” is energy that BPA expects to produce under predictable streamflow conditions. “Nonfirm” power is energy in excess of firm power, and is provided only when such excess exists. 1 Throughout this opinion, the term “respondents” is used to refer only to those parties who support the Court of Appeals’ judgment. The term does not include the Administrator of BPA and the Secretary of the Department of Energy, who nominally are respondents in this case even though they urge reversal of the judgment below. 384 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. BPA’s customers include three groups that are relevant to this case.2 The primary group is what the Project Act refers to as “public bodies and cooperatives,” which includes public utilities and other public entities.3 These entities are “preference” customers, and BP A is required to give priority to their applications for power when competing applications from nonpreference customers are received. See §4(b) of the Project Act, 16 U. S. C. §832c(b). BPA’s other two groups of customers are private, investor-owned utilities (lOUs), and direct-service industrial customers (DSIs). The latter are large industrial end-users that purchase power directly from BP A instead of through a utility. lOUs and DSIs are “nonpreference” customers, and BPA is allowed to contract to sell to them only power for which preference customers do not apply. Once a contract between BPA and a customer is signed, however, the Project Act makes clear that the contract is “binding in accordance with the terms thereof.” §5(a), 16 U. S. C. §832d(a). In the early years of the Project Act, BPA’s contract with each of its customers obligated BPA to supply the customer’s full contractual requirements on a “firm,” noninterruptible basis. In 1948, the increasing demand for power in the Northwest caused BPA to modify its industrial sales policy so as to require that, where feasible, a new contract signed with a DSI provide that some power be supplied on a nonfirm basis. This condition meant that a portion of DSI power could be interrupted when necessary to supply BPA’s prefer- 2 In addition to the three relevant customer categories, BPA is also authorized to sell power to federal agencies in the region. See § 5(b)(3) of the Regional Act, 16 U. S. C. § 839c(b)(3). Sales to such agencies have no pertinency for this litigation. 3 Section 3 of the Project Act, 16 U. S. C. § 832b, defines “public bodies” as “States, public power districts, counties, and municipalities, including agencies or subdivisions of any thereof.” It defines “cooperatives” as “nonprofit-making . . . organizations of citizens supplying . . . members with any kind of goods, commodities, or services, as nearly as possible at ALUMINUM CO. v. CENTRAL LINCOLN UTIL. DIST. 385 380 Opinion of the Court ence customers. DSIs are unique among BPA’s customers in their ability to tolerate such interruptions in service; they are able to do so because some of their industrial processes can withstand periodic power interruptions without damage. Utilities, on the other hand, require power on a nonin-terruptible basis because their residential consumers cannot withstand periodic interruptions in service. The increased demand for power in the 1970’s required that BPA alter its sales policies even more drastically. Projections at that time showed that because of increased power demand, preference customers soon would require all of BPA’s power. See H. R. Rep. No. 96-976, pt. 1, pp. 23-27 (1980). Accordingly, BPA announced in 1973 that new contracts for firm power sales to lOUs would not be offered. In addition, when BPA signed contracts with DSIs in 1975, it specified that 25% of their power would be subject to interruption “at any time,” and it advised the DSIs that as their new contracts expired during the 1981-1991 period, they were not likely to be renewed. The increase in demand soon threatened even the ability of BPA’s preference customers to obtain federal power to meet their full power needs. In 1976, BPA informed its preference customers that BPA would not be able to satisfy preference customer load growth after July 1,1983, and BPA began to consider how to divide the available federal power among its preference customers. The high cost of alternative sources of power caused BPA’s nonpreference customers vigorously to pursue ways to regain access to cheap federal power. Most important, many areas that were served by lOUs moved to establish public entities designed to qualify as preference customers and be eligible for administrative allocations of power.4 Because the 4 Because of the preference accorded public utilities over private ones, those States that had a relatively large proportion of public utilities benefited from the federal power more than the States in which most consumers were served by lOUs. Although 80% of the consumers in the State of 386 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. Project Act provided no clear way of allocating among preference customers, and because the stakes involved in buying cheap federal power had become very high, this competition for administrative allocations threatened to produce contentious litigation. The uncertainty inherent in the situation greatly complicated the efforts by all BPA customers to plan for their future power needs. To avoid the prospect of unproductive and endless litigation, Congress enacted the Regional Act. The Act provided for future cooperation in the region by establishing a mechanism for comprehensive federal/state power planning. §§ 4 and 6, 16 U. S. C. §§839b and 839d. For the first time, moreover, BPA was authorized to acquire resources to increase the supply of federal power.5 In addition, § 5 of the Act, 16 U. S. C. §839c, sought to avert disputes over the allocation of power by requiring BPA to enter into an initial set of contracts with its various types of customers. Section 5(d)(1)(B) of the Act, 16 U. S. C. § 839c(d)(l)(B), required that “[a]fter the effective date of this Act [Dec. 5, 1980], the Administrator shall offer ... to each existing direct service industrial customer an initial long term contract that provides such customer an amount of power equivalent to that to which such customer is entitled under its contract dated January or April 1975 . . . .” These contracts were to Washington had access to BPA power because they were served by preference customers, only 20% of the consumers in Oregon had access to such power. See Pacific Northwest Electric Power Supply and Conservation: Hearings on H. R. 9020, H. R. 9664, and H. R. 5862 before the Subcommittee on Water and Power Resources of the House Committee on Interior and Insular Affairs, 95th Cong., 1st Sess., pt. 3, p. 9 (1977). 6 Under the Project Act, BPA did not have authority to own, construct, or purchase the output or capability of electricity generating plants except to meet short-term deficiencies; BPA was entirely a marketing agency that disposed of power generated at dams constructed by the Army Corps of Engineers and what was then called the Bureau of Reclamation (now the Water and Power Resources Service). See H. R. Rep. No. 96-976, pt. 2, pp. 26-27 (1980). ALUMINUM CO. v. CENTRAL LINCOLN UTIL. DIST. 387 380 Opinion of the Court replace the existing DSI contracts that were scheduled to expire at various times during the period 1981-1991. Section 5(d)(1)(A) indicated that the sales to the DSIs under the new contracts were to “provide a portion of the Administrator’s reserves for firm power loads within the region.”6 Pursuant to this statutory directive, the Administrator offered new, 20-year contracts to its DSI customers. The contracts were for the same amount of power specified by the existing 1975 contracts. Based upon his interpretation of the statute and the legislative history of the Act, however, the Administrator concluded that the terms of the power sales were not to be the same as they had been under the 1975 contracts. The 1975 contracts provided that a portion (the “top quartile”) of the power supplied to DSIs could be interrupted “at any time.” This provision made the top quartile of DSI power subject to the preference provisions of the Project Act, and enabled preference utilities to interrupt it whenever they wanted nonfirm power. The Administrator concluded that such a provision in the new contracts would conflict with § 5(d)(l)(A)’s directive that sales to DSIs should “provide a portion of the Administrator’s reserves for firm power loads” (emphasis added). Accordingly, the Administrator offered DSI customers contracts that allowed interruption only to protect BPA’s firm loads, and not to make sales of nonfirm energy. 46 Fed. Reg. 44340 (1981). This aspect of the new DSI contracts is at the center of the present dispute. Under the Project Act, nonfirm power was allocated hourly on an “if available basis,” and was subject to the preference provisions of that Act. Although nonfirm power is too unreliable for preference utilities to use to satisfy the demands of their consumers on a general basis, it nevertheless is attractive to many preference utilities be 6 The statute defines “reserves” as “the electric power needed to avert particular planning or operating shortages for the benefit of firm power customers . . . .” §3(17), 16 U. S. C. §839a(17) (emphasis added). 388 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. cause it could be used as a substitute for power they generated themselves. In this manner, nonfirm power purchases enabled preference utilities to shut down their own facilities when they required maintenance, or if they could not generate power as cheaply as BPA. Alternatively, preference utilities appear to have been able to “arbitrage” BPA’s nonfirm power by using it to displace their own power, which they then sold to users that could not purchase power directly from BPA.7 By making DSI power interruptible under the new contracts only to protect BPA’s firm power obligations, the new contracts reduced the amount of nonfirm power available to preference utilities. Shortly after the Administrator’s decision and the execution of new DSI agreements, respondents challenged the contracts by petition for review in the Court of Appeals. The core of their challenge was that the proposed contracts violated the preference to nonfirm power accorded under the 1975 contracts. That preference, it was said, was reserved by §5(a) of the Regional Act, 16 U. S. C. §839c, which states: “All power sales under this Act shall be subject at all times to the preference and priority provisions of the Bonneville Project Act of 1937 . . . .” Respondents also relied on § 10(c) of the Regional Act, 16 U. S. C. §839g(c), which provides that the Act does not “alter, diminish, abridge, or otherwise affect the provisions of other Federal laws by which 7 Respondents’ discussion of this use of nonfirm power seems to us to be somewhat less than persuasive. The parties agree that the direct resale of BPA power by preference customers is prohibited. Petitioners contend, however, that respondents can and do use nonfirm federal power to displace their own power, which they can resell to other users. See Brief for Petitioners 47; Reply Brief for Petitioners 18, n. 58. Respondents do not specifically deny this, and simply emphasize their “other uses” for nonfirm power and the fact that they use the BPA power to serve their customers. See Brief for Respondent Public Power Council 20-21; Brief for Respondents Central Lincoln Peoples’ Utility District et al. 9, n. 25. We therefore take respondents to have conceded that they do arbitrage the nonfirm BPA power. ALUMINUM CO. v. CENTRAL LINCOLN UTIL. DIST. 389 380 Opinion of the Court public bodies and cooperatives are entitled to preference and priority in the sale of federally generated electric power.” Respondents argue that these provisions require that DSI power be interruptible under the new contracts on the same terms as it was under the 1975 contracts. In addition, respondents assert that the conditions in the new contracts effectively provide the DSIs with a greater “amount of power” than their 1975 contracts, in violation of § 5(d)(1)(B) of the Regional Act, 16 U. S. C. § 839c(d)(l)(B). The Court of Appeals agreed with respondents and found the Administrator’s interpretation of the Act to be unreasonable. Central Lincoln Peoples’ Utility District v. Johnson, 686 F. 2d 708 (CA9 1982). The court relied heavily on §§ 5(a) and 10(c) of the Regional Act to conclude that the Act preserved the longstanding practice of allocating nonfirm power under the 1975 contracts. Because of the importance of the issue, we granted certiorari. 460 U. S. 1050 (1983). II A Under established administrative law principles, it is clear that the Administrator’s interpretation of the Regional Act is to be given great weight. “We have often noted that the interpretation of an agency charged with the administration of a statute is entitled to substantial deference.” Blum v. Bacon, 457 U. S. 132, 141 (1982). “To uphold [the agency’s interpretation] ‘we need not find that [its] construction is the only reasonable one, or even that it is the result we would have reached had the question arisen in the first instance in judicial proceedings.’ . . . We need only conclude that it is a reasonable interpretation of the relevant provisions.” American Paper Institute, Inc. v. American Electric Power Service Corp., 461 U. S. 402, 422-423 (1983), quoting Unemployment Compensation Comm’n v. Aragon, 329 U. S. 143, 153 (1946). 390 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. These principles of deference have particular force in the context of this case. The subject under regulation is technical and complex. BPA has longstanding expertise in the area, and was intimately involved in the drafting and consideration of the statute by Congress. Following enactment of the statute, the agency immediately interpreted the statute in the manner now under challenge. Thus, BPA’s interpretation represents “ ‘a contemporaneous construction of a statute by the men charged with the responsibility of setting its machinery in motion, of making the parts work efficiently and smoothly while they are yet untried and new.’” Udall v. Tallman, 380 U. S. 1, 16 (1965), quoting Power Reactor Co. v. Electricians, 367 U. S. 396, 408 (1961). Giving the Administrator’s interpretation the deference that it is due, we are convinced that his interpretation is a fully reasonable one. Section 5(d)(1)(B) of the Regional Act, 16 U. S. C. § 839c(d)(l)(B), expressly directs the Administrator to offer each existing DSI an initial long-term contract for the same amount of power as provided in its existing contract. It is therefore beyond dispute that the plain language of the statute mandates that contracts be offered. Respondents challenge the contracts, however, because they contain interruptibility provisions different from those in the 1975 contracts. Respondents offer essentially two arguments in support of their position. Neither is persuasive. First, respondents claim that the new contracts violate the statutory directive that the contracts be for the same “amount of power” as the 1975 contracts. Because the proposed contracts curtail the situations in which power can be interrupted, respondents argue that they effectively provide DSIs with a greater amount of power than they would have received under the 1975 contracts. Petitioners and the Administrator contend, on the other hand, that the term “amount of power” refers only to the quantity of power to be sold to the DSIs as measured in kilowatts. They claim that the phrase does not determine the interruptibility or “quality” of the power that is sold under the required contracts. ALUMINUM CO. v. CENTRAL LINCOLN UTIL. DIST. 391 380 Opinion of the Court The distinction between power amount and power “quality” is a valid one that can be seen by reference to the 1975 contracts. Under those contracts, the “amount” of power referred simply to the number of kilowatts sold. The contractual terms governing the interruptibility of the power were included in other provisions in the contracts. See contract between BPA and Kaiser Aluminum & Chemical Corp. (1975), App. to Pet. for Cert. N-2, N-5. It is reasonable to conclude that the statutory directive that the new contracts be for the same “amount of power” as the 1975 contracts requires simply that the new contracts involve the same number of kilowatts. Respondents do not contend that the new contracts fail to meet this requirement. Sections 5(d)(1)(A) and 3(17) of the Regional Act lend support to this interpretation. The former expressly requires that power sales to the DSIs “shall provide a portion of the Administrator’s reserves for firm power loads.” The latter defines reserves as the power needed to protect BPA’s “firm power customers” from shortages. It is clear from these provisions that at least some portion of DSI power is interruptible to protect the firm needs of other customers. In addition, however, these provisions support the Administrator’s inference that the Regional Act does not require DSI power to be interruptible to meet the nonfirm power desires of preference customers, and the legislative history confirms this view. The Report of the Senate Committee on Energy and Natural Resources clearly explains: “[T]he term ‘firm power customers of the Administrator’ is intended to mean the firm power loads of such customers. It is not intended that the Administrator’s reserves will be used to protect other than firm loads” (emphasis supplied). S. Rep. No. 96-272, p. 23 (1979). Because it is clear that the top quartile of DSI power is a part of BPA’s reserves, that power is not to be used to serve nonfirm power loads. Respondents’ claim that the top quartile of power must be interruptible “at any time” in order to provide the DSIs with the same “amount of power” is incorrect even under respond 392 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. ents’ own interpretation of the phrase. The parties agree that the DSIs’ second quartile of power can be interrupted in more situations under the new contracts than under the 1975 contracts, and that the power quality of the second quartile is therefore lower than before. See Respondents’ Memorandum in Opposition to Motion for Temporary Injunction or Stay Pending Review, filed Sept. 8, 1981, App. 21 (table comparing interruptibility of second quartile of DSI power in 1975 and new contracts). The legislative history of the Regional Act makes clear that Congress expressly endorsed, perhaps even required, that the new contracts contain the conditions making the second quartile power more interruptible than before.8 If, as respondents would have it, the top 8 The House Interior and Insular Affairs Committee Report, for example, expressly stated that the second quartile under the new contracts, “will provide a planning reserve to protect the Administrator’s firm loads against the delayed completion or unexpectedly poor performance of regional generating resources or conservation measures implemented or acquired by BPA.” H. R. Rep. No. 96-976, pt. 2, p. 48 (1980). The language in this Report is copied verbatim from a letter written by the BPA Administrator to the House Subcommittee explaining how BPA would serve the DSI load under the Regional Act. See Appendix III to Letter dated Aug. 19, 1980, from BPA Administrator to Rep. Kazen, Chairman, House Subcommittee on Water and Power Resources, App. to Pet. for Cert. 1-23. A similar statement is in the Senate Report. S. Rep. No. 96-272, p. 28 (1979). The second quartile interruptibility provisions described similarly in all of these passages differ from those in the 1975 contracts. The dissent apparently concedes that the second quartile interruptibility provisions of the new contracts differ from those in the 1975 contracts, post, at 403-405, and the dissent is presumably aware of the legislative history specifically endorsing the new provisions. Thus, the dissent acknowledges that its interpretation of the phrase “same amount of power” leads to an inconsistency, but claims that Congress was not “aware that it was altering the interruptibility provisions” (emphasis supplied), apparently assuming that Congress simply forgot what was in the 1975 contracts. It seems improvident to assume such ignorance on the part of Congress, not to mention the Administrator of BPA, when Congress clearly had to focus on the terms of the 1975 contracts in drafting several aspects of the statute. ALUMINUM CO. v. CENTRAL LINCOLN UTIL. DIST. 393 380 Opinion of the Court quartile of power remained interruptible in the same situations as under the 1975 contracts, but the second quartile became more interruptible than before, it is apparent that the new contracts would provide the DSIs with a smaller total “amount of power,” as respondents seek to define that phrase. In short, Congress could not have contemplated interruptibility terms for the second quartile different from those in the 1975 contracts, and at the same time have insisted that DSIs get the “same amount of power” under respondents’ definition of the phrase; it is clear therefore, that that definition is not what Congress intended. Respondents’ second argument is that the terms of the new contracts conflict with § 5(a) of the Regional Act. It is true, as respondents assert, that that section preserves the priority and preference provisions that existed under the Project Act. But the preference system merely determines the priority of different customers when the Administrator receives “conflicting or competing” applications for power that the Administrator is authorized to allocate administratively. § 4(b) of the Project Act, 16 U. S. C. §832c(b). In the instant case, the initial contracts offered by the Administrator to the DSIs are not part of an administrative allocation of power. The power sold pursuant to those contracts is allocated directly by the statute. Because there is no administrative allocation of power, there can be no competing applications. The preference provisions of the Project Act as incorporated into the Regional Act therefore simply do not apply to the initial contracts that the statute requires the BP A to offer.9 9 The reliance by respondents and the Court of Appeals on § 10(c) of the Regional Act, 16 U. S. C. § 839g(c), is similarly misplaced. Section 10 is entitled “Savings Provisions.” The purpose of § 10(c) was to reassure preference customers in other regions of the country who feared that the Regional Act—by statutorily allocating power directly to nonpreference customers—would set a precedent that would weaken the commitment to preference that exists in other statutes governing the sale of federal power generated in other regions. See H. R. Rep. No. 96-976, pt. 1, pp. 34-35 (1980); cf. 126 Cong. Rec. 29803 (1980) (remarks of Rep. Udall). That section thus is irrelevant to the issue in this case. 394 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. Respondents’ argument that power sold to DSIs under the new contracts is subject to preference implicitly proves too much. There is nothing in either the rules governing preference or the Project Act that distinguishes the top quartile of DSI power from the other three quartiles. Under the 1975 contracts, the difference between the top quartile and the other quartiles was the provision in those contracts that made the top quartile subject to interruption “at any time.” That contract term allowed the Administrator to treat the top quartile of power as if it were uncommitted, and subjected it to preference. The other three quartiles were not subject to preference simply because the terms of the contracts did not so provide. Thus, the distinction among the different quartiles under the 1975 contracts was a product of the terms of the contracts, not a requirement of the Project Act’s preference provisions. There is likewise nothing in the Regional Act that distinguishes between the top quartile and the other quartiles for purposes of applying preference when offering the new DSI contracts. If respondents are correct that the power sold to the DSIs under the new contracts is subject to preference, then respondents have preference not only for power in the top quartile, but for the other three quartiles as well. For as long as that power is uncommitted, the preference provisions apply. Once committed by contract, the interruptibility of the power is determined by the terms of the contract. § 5a, 16 U. S. C. §832d(a). It appears, therefore, that respondents’ view of the Regional Act would render meaningless the initial contracts contemplated by § 5(d)(1)(B). Respondents’ argument is essentially that the allocation of power under the mandated contracts should be the same as it would be if the preference rules applied. But Congress presumably included § 5(d)(1)(B) precisely because it wanted to achieve an allocation of power that differs from what allocation by preference ALUMINUM CO. v. CENTRAL LINCOLN UTIL. DIST. 395 380 Opinion of the Court would produce; preference was the perceived problem, not the chosen solution.10 The Administrator’s interpretation of the Regional Act also is supported by § 5(g)(7) of that Act, 16 U. S. C. §839c(g)(7). That section “deem[s]” the Administrator “to have sufficient resources for the purpose of entering into the initial contracts” mandated by the statute. Through this express legal fiction, Congress ensured that the initial contracts could not be challenged by a claim that BPA lacked the power to enter into contracts with nonpreference customers. Congress clearly intended BPA to offer the DSI contracts even if that necessitated the acquisition by BPA of additional power through outside purchases and construction of new generating facilities. If preference were to apply to the initial contracts, however, they could be executed only after preference customers have purchased all the power they desire. Such a condition would be truly incongruous, for it could require BPA to obtain an almost unlimited amount of power. When Congress “deemed” the Administrator “to have sufficient resources for the purpose of entering into the initial contracts specified” by the Act, it is only sensible to assume that Congress intended such contracts to be made without regard to the preference rules that govern sales that are not statutorily mandated. 10 To say that the preference provisions do not apply to the initial set of contracts does not make preference meaningless. As was the case prior to the Regional Act, preference continues to govern the allocation of all power that is not committed by contract. Thus, the preference rules will apply to any subsequent contracts made with DSIs. Even during the period of the initial contracts, the preference provisions apply to any surplus power that exists. See 16 U. S. C. § 839c(f). Such surplus might exist, for example, because of especially high annual or seasonal streamflow fluctuations, or because BPA’s power acquisition program secures additional power faster than BPA’s increasing contractual commitments. See Mellem, Darkness to Dawn? Generating and Conserving Electricity in the Pacific Northwest: A Primer on the Northwest Power Act, 58 Wash. L. Rev. 245, 269-273 (1983). 396 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. B The legislative history of the Regional Act confirms the interpretation put forward by BPA and petitioners. That history shows that Congress paid specific attention to power sales to DSIs, and consulted BPA on the relationship between those sales and the broader purposes of the Act. The record gives no indication that Congress intended the new DSI contracts to have provisions governing interruptibility that were the same as in the 1975 contracts. The Committee Reports of both Houses made particular reference to the DSI contracts and the manner in which those sales would provide the reserves for the Administrator’s other obligations. The Senate Report contains the following explanation of the section dealing with DSI sales. “The power quality provided the direct-service industries is determined by the reserve obligations set forth in their contracts in order to protect service to firm loads of the Administrator. It is intended that these contracts at least provide peaking power reserves similar to those provided in the present contracts, and that the energy reserves shall include a reserve approximately equal to 25 percent of the direct service industrial load to protect firm loads for any reason, including low or critical streamflow conditions ...” (emphasis supplied). S. Rep. No. 96-272, p. 28 (1979). This passage flatly contradicts respondents’ argument. The first sentence makes clear that the “quality” of the power provided to the DSIs is determined by the need to provide reserves to protect “the firm loads of the Administrator.” The sentence is noticeably devoid of any suggestion that the quality of power is to be the same as it was under the 1975 contracts. The rest of the passage reinforces the view that the purpose of the interruptibility provisions is “to protect firm loads.” ALUMINUM CO. v. CENTRAL LINCOLN UTIL. DIST. 397 380 Opinion of the Court The House Report indicates a similar understanding: “Approximately 25 percent of the DSI load is to be treated as a firm load for purposes of resource operation and will provide an operating reserve that may be restricted by the BPA at any time in order to protect the Administrator’s firm loads within the region and for any reason, including low or critical streamflow conditions and unanticipated growth of regional firm loads.” H. R. Rep. No. 96-976, pt. 2, p. 48 (1980). This passage confirms that DSI sales were to be interruptible “to protect the Administrator’s firm loads.” Such a requirement would have little meaning if, as respondents would have it, the statute also requires DSI power to be interruptible at any time for any reason. The source of this language in the House Report is significant. While the bill was still under consideration, BPA conferred with the Committee’s staff and furnished the Committee with its understanding of how sales to DSIs would operate. The passage from the Report quoted above is an almost verbatim incorporation of BPA’s understanding of the provision. See Appendix III to Letter dated Aug. 19, 1980, from BPA Administrator to Rep. Kazen, Chairman, House Subcommittee on Water and Power Resources, App. to Pet. for Cert. 1-23 (discussing the DSI service under the Regional Act). The legislative history therefore indicates that BPA consulted with Congress during the consideration of the Regional Act, and that BPA and Congress shared an understanding of the terms on which the Administrator would sell power to DSIs under the Act. Respondents rely on the legislative history to establish two points, neither of which is controverted. First, respondents use the legislative history to demonstrate what § 5(a) already makes clear—that the Regional Act does not alter the priority provisions of the Project Act. See Brief for Respondents 398 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. Central Lincoln Peoples’ Utility District et al. 23-30. Petitioners and the Administrator do not contest this point. But the issue in this case is not whether the preference rules have been changed; the issue is whether the preference rules apply to power that the statute requires BPA to sell to DSIs. Because it is clear that the power sold under the initial contracts is committed to DSIs by statute, it is equally clear that it is not uncommitted power to which preference applies. Respondents’ second use of the legislative history is to show that, under the 1975 contracts, the top quartile of DSI was subject to preference because it was interruptible “at any time.” Id., at 21-23. This point also is uncontroverted. The issue in this case, however, is whether the new contracts mandated by the Regional Act must provide that a portion of DSI power be subject to interruption “at any time.” If so, there is no dispute over whether preference would apply to that power. But respondents have not pointed to anything in the Regional Act that requires that the interruptibility terms of the 1975 contracts be incorporated into the new contracts. C Because the Regional Act does not comprehensively establish the terms on which power is to be supplied to DSIs under the new contracts, it is our view that the Administrator has broad discretion to negotiate them. Such discretion is especially appropriate in this situation, because DSI sales are merely one part of a complicated statutory allocation plan designed to achieve several goals. Most important, sales to DSIs under the Regional Act are intricately related to the “exchange” program established by the Regional Act on behalf of nonpreference utilities. § 5(c), 16 U. S. C. § 839c(c). The exchange program is designed to provide rate relief for consumers served by lOUs. As noted supra, the operation of preference under the Project Act produced an allocation of cheap federal power that heavily favored public ALUMINUM CO. v. CENTRAL LINCOLN UTIL. DIST. 399 380 Opinion of the Court utilities (preference customers) over private utilities (nonpreference customers). As a consequence, consumers that lived in areas served by public utilities enjoyed much cheaper power than consumers served by lOUs. The exchange program operates to reduce this disparity. Very briefly, the program consists of an “exchange” arrangement under which lOUs are allowed to sell power to BPA at their average system cost, and then purchase from BPA an equal quantity of cheaper federal power. The benefits to the lOUs under this program are to be passed on directly to residential consumers. Because this exchange program essentially requires BPA to trade its cheap power for more expensive power, it is obviously a money-losing program for BPA. The Act expressly contemplates that much of the cost of this program is to be covered by power sales to DSIs, which pay a considerably higher price for power than other users. Section 7(c)(1), 16 U. S. C. §839e(c)(l), expressly directs the Administrator initially to charge the DSIs a rate “sufficient to [cover] the net costs incurred by the Administrator” under the exchange program. The House Report explained the interrelationship between sales to DSIs and the exchange program in some detail: “[The DSIs] will also pay significantly higher rates under the new contracts. These higher rates permit the Administrator to enter into contracts with the region’s investor-owned utilities for an exchange of power equal to the utilities’ residential load. This exchange will permit residential customers of investor-owned utilities to share in the benefits of the lower-cost Federal resources. The power sold to BPA will be sold at the utilities’ average system cost and purchased back at the rate paid by the preference customers’ utilization [sic] their general requirements. The loss in revenue to the Administrator is in effect returned by the higher direct service industry rates. By providing these residential customers whole 400 OCTOBER TERM, 1983 Stevens, J., dissenting 467 U. S. sale rate parity with residential customers of preference utilities, the amendment serves in a substantial way to cure a major part of the allocation problem.” H. R. Rep. No. 96-976, pt. 1, p. 29 (1980). This passage makes clear that the DSI sales and the power exchange program are integrally related. BPA’s ability to finance the exchange program is related to the amount of power that BPAs sell to DSIs, which in turn is determined by the interruptibility terms of the new DSI contracts. It is the responsibility of the Administrator to manage the complex relationship among these various aspects of the statute, and, absent an express statutory statement requiring particular terms in the contracts, it is appropriate that we give him broad discretion to determine them.11 Ill For the foregoing reasons, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.12 It is so ordered. Justice Stevens, dissenting. Section 5(d)(1)(B) of the Pacific Northwest Electric Power Planning and Conservation Act of 1980, 94 Stat. 2697, provides: “[T]he Administrator shall offer in accordance with subsection (g) of this section to each existing direct service 11 In holding that the Regional Act does not require that DSI power be interruptible to serve the nonfirm power needs of preference customers, we do not decide whether the Administrator could negotiate for such a condition if he concluded that it would serve the purposes of the Act. 12 One set of respondents argues that we should affirm the Court of Appeals’ judgment, but narrow its scope. See Brief for Portland General Electric Company et al. Given our disposition of the case, we necessarily reject that argument. ALUMINUM CO. v. CENTRAL LINCOLN UTIL. DIST. 401 380 Stevens, J., dissenting industrial customer an initial long term contract that provides such customer an amount of power equivalent to that to which such customer is entitled under its contract dated January or April 1975 providing for the sale of‘industrial firm power.’” 16 U. S. C. §839c(d)(l)(B). The critical question in this case is whether the contracts offered by the Administrator of the Bonneville Power Administration (BPA) pursuant to the 1980 Act are for “an amount of power equivalent to” the amount to which the direct service industrial customers (DSIs) were entitled under their 1975 contracts. Under the 1975 contracts, 75 percent of the specified amount of power was virtually guaranteed; the “top quartile,” however, was subject to interruption at any time to meet the demands of preference customers. Thus, the actual amount of power delivered under the 1975 contracts was an amount somewhere between 75 percent and 100 percent of the amount stated in the contracts.1 Under the 1980 contracts, 100 percent of the specified amounts is virtually guaranteed. No longer is the first quartile subject to interruption at any time. The result of changing the “quality” of first quartile power is to provide the DSIs with a larger amount of power than they would have received under the 1975 contracts. That is plainly inconsistent with § 5(d)(1)(B), which indicates that the DSIs’ “contracts will provide power in amounts equal to, but not greater than, that which these companies are now entitled under existing contracts with BPA, and the terms of these contracts will require that these compa 1 Apparently only about two-thirds of the first quartile load was being delivered to the DSIs during the years preceding the passage of the 1980 Act. See App. 36. Thus, it would seem that the amount of power actually delivered to those customers was approximately 91 percent of the stated contract amounts. 402 OCTOBER TERM, 1983 Stevens, J., dissenting 467 U. S. nies continue to supply reserves for the region.” H. R. Rep. No. 96-976, pt. 2, p. 29 (1980) (emphasis supplied).2 Thus, the new contracts do not comply with the plain language of the 1980 Act.3 2 The passage from the Senate Report quoted by the majority ante, at 396, when read in context, is inconsistent with the majority’s conclusion that DSIs have greater protection against interruption under the 1980 Act than under their 1975 contracts: “The power quality provided the direct-service industries is determined by the reserve obligations set forth in their contracts in order to protect service to firm loads of the Administrator. It is intended that these contracts at least provide peaking power reserves similar to those provided in the present contracts, and that the energy reserves shall include a reserve approximately equal to 25 percent of the direct service industrial load to protect firm loads for any reason, including low or critical streamflow conditions, and an additional energy reserve of approxiamtely [sic] the same amount to protect firm loads against the delayed completition [sic] or unexpectedly poor performance of reginal [sic] generating resources or conservation measures, and against the unanticipated growth of regional firm loads. One intended result of these procedures is that there will be no increase in firm power commitments to the direct service industrial customs [sic], except for technological improvements purposes.” S. Rep. No. 96-272, p. 28 (1980). When read in light of its last sentence, this paragraph makes it clear that Congress intended that DSIs have no greater assurance against interruption than they did under their 1975 contracts. Moreover, in a rate analysis submitted to Congress by the BPA, it estimated its projected revenues under the proposed legislation by assuming that it would continue to interrupt the top quartile of DSIs’ power at the same rate that it had done so in the past, n. 1, supra, supplying from 86 to 96 percent of the DSIs’ loads, and also anticipated interruptions in the top quartile in excess of those necessary to protect firm loads. See S. Rep. No. 96-272, at 59. 3 To the extent that the Court relies on “deference” to the Administrator’s interpretation of the 1980 Act, ante, at 390, it must be borne in mind that what is at issue here is the agency’s construction of a statute: “The interpretation put on the statute by the agency charged with administering it is entitled to deference, but the courts are the final authorities on issues of statutory construction. They must reject administrative constructions of a statute, whether reached by adjudication or by rulemaking, that are inconsistent with the statutory mandate or that frustrate the policy that Congress sought to implement. Accordingly, the crucial issue at ALUMINUM CO. v. CENTRAL LINCOLN UTIL. DIST. 403 380 Stevens, J., dissenting The Court attempts to square its holding with the language of the statute by drawing a distinction between the “quantity” of power offered and its “quality.” The Court believes that while § 5(d)(1)(B) requires the same quantity of power to be offered to DSIs as was offered in 1975, § 5(d)(1)(A) requires that the “quality” of the power be higher than under the 1975 contracts; under the 1980 Act the top quartile of power provided to DSIs is of a higher “quality” since it can be interrupted only for firm power loads. Ante, at 390-391. The proffered distinction between the “quantity” and “quality” of power is nonexistent, however. Kilowatts are fungible. Interruptibility is significant not because it affects the “quality” of power a customer receives, but because it affects the amount of power a customer receives. Under the challenged contracts DSIs receive power that is less freely interruptible than it was under their 1975 contracts; hence they are now entitled to a greater “amount of power” than they were under their 1975 contracts. That result violates the plain language of § 5(d)(1)(B). In the 1981 contracts the DSIs agreed that the second quartile of power would be subject to interruption on two contingencies that were not applicable to the second quartile the outset is whether the Court of Appeals correctly construed the Act.” FEC v. Democratic Senatorial Campaign Comm., 454 U. S. 27, 31-32 (1981) (citations omitted). It is also worth noting that the Adminstrator’s interpretation of this Act has not been a model of consistency. In the BPA’s final Environmental Impact Statement, issued in December 1980, it stated that top quartile DSI power can be interrupted “[a]t any time for any period for any reason.” App. 31. Similarly, in its summary of its original draft contracts under the 1980 Act, it stated: “BPA may interrupt a portion of the DSI load, not to exceed 25 percent of the Operating Demand plus the Auxiliary Power, at any time, for any reason, and for any duration.” Id., at 74. See also n. 2, supra. In light of the lack of clarity that has characterized BPA’s position both before and after the passage of the 1980 Act, its position surely is not entitled to so much deference as to override the plain import of the words Congress enacted. See General Electric Co. v. Gilbert, 429 U. S. 125, 143 (1976). 404 OCTOBER TERM, 1983 Stevens, J., dissenting 467 U. S. under the 1975 contracts. They therefore argue and the Court concludes, ante, at 390-391, that since respondents do not object to the fact that the second quartile under the 1980 contracts is of a different quality than under the 1975 contracts, respondents must accept the conclusion that “quality” has a meaning different from quantity. But it was after the Act was passed that the Administrator and the DSIs agreed upon a new contract that provided the DSIs with substantially more first quartile power with a fairly remote possibility of a lesser amount of second quartile power. The net result of the trade-off is still to give the DSIs significantly greater contractual entitlements than they had under the 1975 contracts. Whatever the actual comparison between the second quartile provisions of the 1975 and 1981 contracts, this argument tells us nothing about the intent of Congress since the legislative history contains no indication that Congress was aware that it was altering the interruptibility provisions of either the first or second quartiles. To the contrary, the legislative history indicates that Congress thought it was not altering the DSIs’ entitlement to power. See n. 2, supra. Moreover, it is questionable whether the second quartile interruptibility provisions of the 1980 Act constitute a real difference from the interruptibility provisions of the 1975 contracts with respect to that quartile. As the majority explains, ante, at 392, n. 8, the 1980 Act anticipated interruption of the second quartile only because of delayed completion or unexpectedly poor performance of generating resources or conservation measures. Prior to the 1980 Act, BPA had no authority to acquire or expand its resources; its function was merely to market power generated at dams constructed by the Army Corps of Engineers. See ante, at 386, and n. 5. Hence, the 1980 Act permits second quartile interruption only on a basis that would not have arisen under the 1975 contracts.4 Surely this relatively insignificant and some- 4 Even if the issue would have arisen under the 1975 contracts, it is doubtful that the DSIs would have been entitled to second quartile power ALUMINUM CO. v. CENTRAL LINCOLN UTIL. DIST. 405 380 Stevens, J., dissenting what esoteric modification of the second quartile provisions is less persuasive evidence of congressional intent than the plain language of the statute itself. The language of § 5(d)(1)(A) should be of little comfort to the majority. All it says is: “The Administrator is authorized to sell in accordance with this subsection electric power to existing direct service industrial customers. Such sales shall provide a portion of the Administrator’s reserves for firm power loads within the region.” 16 U. S. C. § 839c(d)(l)(A).6 This subsection makes no reference at all to the “quality” of power to which DSIs are entitled. If this language was designed to entitle DSIs to higher “quality” power than they received under their 1975 contracts, then Congress picked a rather obtuse way of expressing the idea. I read the subsection to mean what it says. The sales that the Administrator makes to the DSIs are part of the reserve for firm power loads.6 In the event of a shortfall, the Administrator is obligated to use top quartile DSI power to meet his firm power obligations even when there is a prefer- in the circumstances in which interruption is permitted under the 1980 Act; those circumstances most likely would have given rise to a commercial frustration defense permitting BPA to interrupt second quartile power to the DSIs. 5 Section 3(17) of the Act defines “reserves”: “ ‘Reserves’ means the electric power needed to avert particular planning or operating shortages for the benefit of firm power customers of the Administrator (A) from resources or (B) from rights to interrupt, curtail,' or otherwise withdraw, as provided by specific contract provisions, portions of the electric power supplied to customers.” 16 U. S. C. § 839a(17). 6 The legislative history of § 5(d)(1)(A), of which the Court makes so much, ante, at 396-397, does not demonstrate that the statute means something other than what it says. The passages from the Committee Reports on the Act quoted by the majority state that the Administrator must treat the top quartile as a reserve to protect firm loads. That he has surely done. But it does not speak to whether that quartile is interruptible to meet the needs of preference customers. See also n. 2, supra. 406 OCTOBER TERM, 1983 Stevens, J., dissenting 467 U. S. ence customer seeking to purchase power; in this respect § 5(d)(1)(A) was necessary to change the law with respect to the rights of preference customers, which would otherwise have had priority even over purchasers of firm power.7 But a provision ordering the Administrator to use top quartile power as a reserve for firm loads sheds no light on the extent of his obligation to sell power to the DSIs. That obligation is governed not by § 5(d)(1)(A), but by § 5(d)(1)(B).8 Because I find nothing in the statute or in its legislative history to indicate that Congress intended to allocate a greater amount of power to the DSIs than they were entitled to receive under their 1975 contracts, I cannot square the Court’s holding with the plain language of the statute. I therefore respectfully dissent. 7 Prior to the passage of the 1980 Act, the Ninth Circuit had construed preference provisions to prohibit the sale of power to a private customer whenever there is a preference customer willing to buy it. See City of Santa Clara V. Andrus, 572 F. 2d 660, 670-671 (CA9), cert, denied, 439 U. S. 859 (1978); Arizona Power Pooling Assn. v. Morton, 527 F. 2d 721, 727-728 (CA9 1975), cert, denied, 425 U. S. 911 (1976). 8 In Part II-C of its opinion, ante, at 398-400, the Court points out that the higher rates charged to DSIs provide a subsidy for certain consumers served by investor-owned utilities, implying, I suppose, that it makes good sense to sell the DSIs more power than they received under the 1975 contracts. If Congress had wanted the Administrator to exploit the DSI market by increasing the amount of such sales, it should not have limited their share of the available supply to an “amount of power equivalent to that to which” DSIs were entitled under the 1975 contracts. And in fact the rate analysis submitted by BPA indicated that it would supply power to DSIs at the same levels as it did under the 1975 contracts. See n. 2, supra. Rather, the fact that the Administrator charged higher rates to DSIs after the 1980 Act became effective is significant only because it explains why § 5(d)(1)(B) did not simply provide that the new contracts would contain precisely the same terms and conditions as the 1975 contracts. Under the new contracts the DSIs’ entitlement to power was to be the same as under the old contracts, but the DSIs had to pay a higher price for it. INS v. STEVIC 407 Syllabus IMMIGRATION AND NATURALIZATION SERVICE v. STEVIC CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 82-973. Argued December 6, 1983—Decided June 5, 1984 After he was ordered to surrender for deportation, respondent alien in 1977 moved to reopen the deportation proceedings, seeking relief under § 243(h) of the Immigration and Nationality Act of 1952 (INA), which then authorized the Attorney General to withhold deportation of an alien upon a finding that the alien “would be subject to persecution” in the country to which he would be deported. The Immigration Judge denied the motion without a hearing, and was upheld by the Board of Immigration Appeals (BIA), which held that respondent had not met his burden of showing that there was a clear probability of persecution. Respondent did not appeal this decision. Subsequently, in 1981, after receiving another notice to surrender for deportation, respondent filed a second motion to reopen, again seeking relief under § 243(h), which in the meantime had been amended by the Refugee Act of 1980—in conformity with the language of Article 33 of the 1968 United Nations Protocol Relating to the Status of Refugees that had been acceded to by the United States—to provide that the Attorney General shall not deport an alien if the Attorney General determines that the alien’s “life or freedom would be threatened” in the country to which he would be deported. This motion was also denied without a hearing under the same standard of proof as was applied in the previous denial. The Court of Appeals reversed and remanded, holding that respondent no longer had the burden of showing “a clear probability of persecution,” but instead could avoid deportation by showing a “well-founded fear of persecution,” the latter language being contained in a definition of the term “refugee” adopted by the United Nations Protocol. The court concluded that the Refugee Act of 1980 so changed the standard of proof, and that respondent’s showing entitled him to a hearing under the new standard. Held: An alien must establish a clear probability of persecution to avoid deportation under § 243(h). Pp. 413-430. (a) At least before 1968, it was clear that an alien was required to demonstrate a “clear probability of persecution” or a “likelihood of persecution” to be eligible for withholding of deportation under § 243(h). Relief under § 243(h) was not, however, available to aliens at the border seeking refuge in the United States due to persecution. They could 408 OCTOBER TERM, 1983 Syllabus 467 U. S. seek admission only under § 203(a)(7) of the INA, and were required to establish a good reason to fear persecution. The legislative history of the United States’ accession to the United Nations Protocol discloses that the President and Senate believed that the Protocol was consistent with existing law. While the Protocol was the source of some controversy with respect to the standard of proof for § 243(h) claims for withholding of deportation, the accession to the Protocol did not appear to raise any questions concerning the standard to be applied for § 203(a)(7) requests for admission, the “good reason to fear persecution” language being employed in such cases. Pp. 414-420. (b) While the text of § 243(h), as amended in 1980, does not specify how great a possibility of persecution must exist to qualify an alien for withholding of deportation, to the extent a standard can be inferred from the bare language, it appears that a likelihood of persecution is required. The section provides for a withholding of deportation only if the alien’s life or freedom “would” be threatened, not if he “might” or “could” be subject to persecution. Respondent is seeking relief under § 243(h), not under provisions which, as amended by the Refugee Act, employ the “well-founded fear” standard that now appears in § 201(a)(42)(A) of the INA and that was adopted from the United Nations Protocol’s definition of “refugee.” Section 243(h) does not refer to § 201(a)(42)(A). Hence, there is no textual basis in the statute for concluding that the well-founded-fear-of-persecution standard is relevant to the withholding of deportation under § 243(h). The 1980 amendment of § 243(h) was recognized by Congress as a mere conforming amendment, added “for the sake of clarity,” and was plainly not intended to change the standard for withholding deportation. There is no support in either §243(h)’s language, the structure of the amended INA, or the legislative history for the Court of Appeals’ conclusion that every alien who qualifies as a “refugee” under the statutory definition is also entitled to a withholding of deportation under § 243(h). The Court of Appeals granted respondent relief based on its understanding of a standard which, even if properly understood, does not entitle an alien to withholding of deportation under § 243(h). Pp. 421-430. 678 F. 2d 401, reversed and remanded. Stevens, J., delivered the opinion for a unanimous Court. Deputy Solicitor General Geller argued the cause for petitioner. With him on the briefs were Solicitor General Lee, Assistant Attorney General McGrath, and Barbara E. Etkind. INS v. STEVIC 409 407 Opinion of the Court Ann L. Ritter argued the cause and filed a brief for respondent.* Justice Stevens delivered the opinion of the Court. For over 30 years the Attorney General has possessed statutory authority to withhold the deportation of an alien upon a finding that the alien would be subject to persecution in the country to which he would be deported. The question presented by this case is whether a deportable alien must demonstrate a clear probability of persecution in order to obtain such relief under § 243(h) of the Immigration and Nationality Act of 1952, 8 U. S. C. § 1253(h), as amended by § 203(e) of the Refugee Act of 1980, Pub. L. 96-212, 94 Stat. 107. I Respondent, a Yugloslavian citizen, entered the United States in 1976 to visit his sister, then a permanent resident alien residing in Chicago. Petitioner, the Immigration and Naturalization Service (INS), instituted deportation proceedings against respondent when he overstayed his 6-week period of admission. Respondent admitted that he was deportable and agreed to depart voluntarily by February 1977. In January 1977, however, respondent married a United States citizen who obtained approval of a visa petition on his behalf. Shortly thereafter, respondent’s wife died in an automobile accident. The approval of respondent’s visa petition was *Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Burt Neubome, E. Richard Larson, and David Carliner; for the American Immigration Lawyers Association by Theodore Ruthizer; for the American Jewish Committee et al. by Samuel Rabinove; for Amnesty International USA by Paul L. Hoffman; for the Committee on Migration and Refugee Affairs of the American Council of Voluntary Agencies for Foreign Service et al. by William T. Lake; for the Lawyers Committee for International Human Rights by Arthur C. Helton; for the National Immigration Project of the National Lawyers Guild, Inc., by Donald L. Ungar; and for the United Nations High Commissioner for Refugees by David B. Robinson. 410 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. automatically revoked, and petitioner ordered respondent to surrender for deportation to Yugolslavia. Respondent moved to reopen the deportation proceedings in August 1977, seeking relief under § 243(h) of the Immigration and Naturalization Act, which then provided: “The Attorney General is authorized to withhold deportation of any alien within the United States to any country in which in his opinion the alien would be subject to persecution on account of race, religion, or political opinion and for such period of time as he deems to be necessary for such reason.” 8 U. S. C. § 1253(h) (1976 ed.). Respondent’s supporting affidavit stated that he had become active in an anti-Communist organization after his marriage in early 1977, that his father-in-law had been imprisoned in Yugoslavia because of membership in that organization, and that he feared imprisonment upon his return to Yugoslavia. In October 1979, the Immigration Judge denied respondent’s motion to reopen without conducting an evidentiary hearing.1 The Board of Immigration Appeals (BIA) upheld that action, explaining: “A Motion to reopen based on a section 243 (h) claim of persecution must contain prima facie evidence that there is a clear probability of persecution to be directed at the individual respondent. See Cheng Kai Fu v. INS, 386 F. 2d 750 (2 Cir. 1967), cert, denied, 390 U. S. 1003 (1968). Although the applicant here claims to be eligible for withholding of deportation which was not available to him at the time of his deportation hearing, he has not ‘The Immigration Judge’s decision stated: “The policy of restricting favorable exercise of discretion to cases of clear probability of persecution of the particular individual has been sanctioned by the courts (Lena v. Immigration and Naturalization Service. 379 F 2nd 536[,] 538 (7th Cir. 1967). The respondent has submitted no substantial evidence that he would be subjected to persecution as that term is defined by the court.” Brief for Respondent 6-7. INS v. STEVIC 411 407 Opinion of the Court presented any evidence which would indicate that he will be singled out for persecution.” App. to Pet. for Cert. 34-35. Respondent did not seek judicial review of that decision. After receiving notice to surrender for deportation in February 1981, respondent filed his second motion to reopen.2 He again sought relief pursuant to § 243(h) which then— because of its amendment in 1980—read as follows: “The Attorney General shall not deport or return any alien... to a country if the Attorney General determines that such alien’s life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U. S. C. § 1253(h)(1). Although additional written material was submitted in support of the second motion, like the first, it was denied without a hearing. The Board of Immigration Appeals held that respondent had not shown that the additional evidence was unavailable at the time his first motion had been filed and, further, that he had still failed to submit prima facie evidence that “there is a clear probability of persecution” directed at respondent individually.3 Thus, the Board applied the same 2 He did not voluntarily respond to that notice; moreover, after his apprehension, he unsuccessfully tried to escape from custody. These events gave rise to a habeas corpus petition raising separate issues that are not before us now. 3 The opinion of the BIA stated, in part: “Accordingly, we find that the respondent has failed to comply with the provisions of 8 CFR 3.2 in that there has been no showing that the submitted material was not available nor could not have been discovered or presented at a former hearing. “In addition, we also conclude that the respondent has failed to make out a prima facie showing that he will be singled out for persecution if deported to Yugoslavia. A motion to reopen based on a section 243(h) claim of persecution must contain prima facie evidence that there is a clear probability of persecution to be directed at the individual respondent. See Cheng Kai 412 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. standard of proof it had applied regarding respondent’s first motion to reopen, notwithstanding the intervening amendment of § 243(h) in 1980. The United States Court of Appeals for the Second Circuit reversed and remanded for a plenary hearing under a different standard of proof. Stevie v. Sava, 678 F. 2d 401 (1982). Specifically, it held that respondent no longer had the burden of showing “a clear probability of persecution,” but instead could avoid deportation by demonstrating a “well-founded fear of persecution.” The latter language is contained in a definition of the term “refugee” adopted by a United Nations Protocol to which the United States has adhered since 1968. The Court of Appeals held that the Refugee Act of 1980 changed the standard of proof that an alien must satisfy to obtain relief under § 243(h), concluding that Congress intended to abandon the “clear probability of persecution” standard and substitute the “well-founded fear of persecution” language of the Protocol as the standard. Other than stating that the Protocol language was “considerably more generous” or “somewhat more generous” to the alien than the former standard, id., at 405, 406, the court did not detail the Fu v. INS, 386 F. 2d 750 (2 Cir. 1967), cert, denied, 390 U. S. 1003 (1968); Matter of McMullen, Interim Decision 2831 (BIA 1981). “In the instant case, the many journalistic articles submitted by the respondent are of a general nature, referring to political conditions in Yugoslavia, but not specifically relating to the respondent. The affidavits and petitions contained in the file, while they conclude that the respondent will be imprisoned if he returns to Yugoslavia, do not contain any supporting facts. They express an opinion but provide no direct evidence to link the respondent’s activities in this country and the probability of his persecution in Yugoslavia. “With regard to the respondent’s allegation that he will be persecuted by Albanian ethnics in Gnjilane, we find that there is nothing to stop the respondent from going to another town in Yugoslavia should he feel threatened in his hometown. A respondent is deported to country [sic], not a city or province. Lavdas v. Holland, 235 F. 2d 955 (3 Cir. 1956); Cantisani v. Holton, 248 F. 2d 737 (7 Cir. 1957).” App. to Pet. for Cert. 30a-31a. INS v. STEVIC 413 407 Opinion of the Court differences between them and stated that it “would be unwise to attempt a more detailed elaboration of the applicable legal test under the Protocol,” id., at 409. The court concluded that respondent’s showing entitled him to a hearing under the new standard. Because of the importance of the question presented, and because of the conflict in the Circuits on the question,4 we granted certiorari, 460 U. S. 1010 (1983). We now reverse and hold that an alien must establish a clear probability of persecution to avoid deportation under § 243(h). II The basic contentions of the parties in this case may be summarized briefly. Petitioner contends that the words “clear probability of persecution” and “well-founded fear of persecution” are not self-explanatory and when read in the light of their usage by courts prior to adoption of the Refugee Act of 1980, it is obvious that there is no “significant” difference between them. If there is a “significant” difference between them, however, petitioner argues that Congress’ clear intent in enacting the Refugee Act of 1980 was to maintain the status quo, which petitioner argues would mean continued application of the clear-probability-of-persecution standard to withholding of deportation claims. In this regard, petitioner maintains that our accession to the United Nations Protocol in 1968 was based on the express “understanding” that it would not alter the “substance” of our immigration laws. Respondent argues that the standards are not coterminous and that the well-founded-fear-of-persecution standard turns almost entirely on the alien’s state of mind. Respondent points out that the well-founded-fear language was adopted in the definition of a refugee contained in the United Nations Protocol adhered to by the United States since 1968. Re 4 Compare Rejaie v. INS, 691 F. 2d 139 (CA3 1982), with Reyes v. INS, 693 F. 2d 597 (CA6 1982) (relying on decision under review). 414 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. spondent basically contends that ever since 1968, the well-founded-fear standard should have applied to withholding of deportation claims, but Congress simply failed to honor the Protocol by failing to enact implementing legislation until adoption of the Refugee Act of 1980, which contains the Protocol definition of refugee. Each party is plainly correct in one regard: in 1980 Congress intended to adopt a standard for withholding of deportation claims by reference to pre-existing sources of law. We begin our analysis of this case by examining those sources of law. Ill United States Refugee Law prior to 1968 Legislation enacted by the Congress in 1950,5 1952,6 and 19657 authorized the Attorney General to withhold deportation of an otherwise deportable alien if the alien would be subject to persecution upon deportation. At least before 1968, it was clear that an alien was required to demonstrate a “clear probability of persecution” or a “likelihood of persecution” in order to be eligible for withholding of deporta- 5 Section 23 of the Subversive Activities Control Act of 1950 amended § 20 of the Immigration Act of February 5,1917, to rewrite the deportation provisions and specifically to add a new § 20(a) which provided in part as follows: “No alien shall be deported under any provisions of this Act to any country in which the Attorney General shall find that such alien would be subjected to physical persecution.” 64 Stat. 1010. 6 Section 243(h) of the Immigration and Nationality Act of 1952 provided as follows: “The Attorney General is authorized to withhold deportation of any alien within the United States to any country in which in his opinion the alien would be subject to physical persecution and for such period of time as he deems to be necessary for such reason.” 66 Stat. 214. 7 That amendment read as follows: “(f) Section 243(h) is amended by striking out ‘physical persecution’ and inserting in lieu thereof ‘persecution on account of race, religion, or political opinion.’” §10, 79 Stat. 918. The provision as revised in 1965 is quoted in the text, supra, at 410. INS v. STEVIC 415 407 Opinion of the Court tion under § 243(h) of the Immigration and Nationality Act of 1952, 8 U. S. C. § 1253(h) (1964 ed.). E. g., Cheng Kai Fu v. INS, 386 F. 2d 750, 753 (CA2 1967), cert, denied, 390 U. S. 1003 (1968); Lena v. INS, 379 F. 2d 536, 538 (CA7 1967); In re Janus and Janek, 12 I. & N. Dec. 866, 873 (BIA 1968); In re Kojoory, 12 I. & N. Dec. 215, 220 (BIA 1967). With certain exceptions, this relief was available to any alien who was already “within the United States,” albeit unlawfully and subject to deportation. The relief authorized by § 243(h) was not, however, available to aliens at the border seeking refuge in the United States due to persecution. See generally Leng May Ma v. Barber, 357 U. S. 185 (1958). Since 1947, relief to refugees at our borders has taken the form of an “immigration and naturalization policy which granted immigration preferences to ‘displaced persons,’ ‘refugees,’ or persons who fled certain areas of the world because of ‘persecution or fear of persecution on account of race, religion, or political opinion.’ Although the language through which Congress has implemented this policy since 1947 has changed slightly from time to time, the basic policy has remained constant—to provide a haven for homeless refugees and to fulfill American responsibilities in connection with the International Refugee Organization of the United Nations.” Rosenberg n. Yee Chien Woo, 402 U. S. 49, 52 (1971). Most significantly, the Attorney General was authorized under § 203(a)(7) of the Immigration and Nationality Act of 1952, 8 U. S. C. § 1153(a)(7)(A)(i) (1976 ed.), to permit “conditional entry” as immigrants for a number of refugees fleeing from a Communist-dominated area or the Middle East “because of persecution or fear of persecution on account of race, religion, or political opinion.” See also § 212(d)(5) of the Act, 8 U. S. C. § 1182(d)(5) (granting Attorney General discretion to “parole” aliens into the United States tempo 416 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. rarily for emergency reasons). An alien seeking admission under § 203(a)(7) was required to establish a good reason to fear persecution. Compare In re Tan, 12 I. & N. Dec. 564, 569-570 (BIA 1967), with In re Ugricic, 14 I. & N. Dec. 384, 385-386 (Dist. Dir. 1972).8 The United Nations Protocol In 1968 the United States acceded to the United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, [1968] 19 U. S. T. 6223, T. I. A. S. No. 6577. The Protocol bound parties to comply with the substantive provisions of Articles 2 through 34 of the United Nations Convention Relating to the Status of Refugees, 189 U. N. T. S. 150 (July 28, 1951)9 with respect to “refugees” as defined in Article 1.2 of the Protocol. Article 1.2 of the Protocol defines a “refugee” as an individual who “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.” Compare 19 U. S. T. 6225 with 19 U. S. T. 6261 (1968). Two of the substantive provisions of the Convention are germane to the issue before us. Article 33.1 of the Conven 8 Notably, during this period of time, neither immigration judges nor the Board of Immigration Appeals had jurisdiction over asylum claims under § 203(a)(7). While the Board had jurisdiction over § 243(h) requests for withholding of deportation, § 203(a)(7) claims for asylum rested in the jurisdiction of Immigration and Naturalization Service District Directors. See generally In re Lam, Interim Dec. No. 2857, p. 5, n. 4 (BIA, Mar. 24,1981). 9 The United States is not a signatory to the Convention itself. INS v. STEVIC 417 407 Opinion of the Court tion provides: “No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” 19 U. S. T., at 6276. Article 34 provides in pertinent part: “The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. ...” Ibid.w The President and the Senate believed that the Protocol was largely consistent with existing law. There are many statements to that effect in the legislative history of the accession to the Protocol. E. g., S. Exec. Rep. No. 14, 90th Cong., 2d Sess., 4 (1968) (“refugees in the United States have long enjoyed the protection and the rights which the protocol calls for”); id., at 6, 7 (“the United States already meets the standards of the Protocol”); see also, id., at 2; S. Exec. K, 90th Cong., 2d Sess., Ill, VII (1968); 114 Cong. Rec. 29391 (1968) (remarks of Sen. Mansfield); id., at 27757 (remarks of Sen. Proxmire). And it was “absolutely clear” that the Protocol would not “requir[e] the United States to admit new categories or numbers of aliens.” S. Exec. Rep. No. 14, supra, at 19. It was also believed that apparent differences 10 Article 32.1 of the Convention provides: “The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.” 19 U. S. T., at 6275. It seems plain that respondent could not invoke Article 32, since he was not lawfully in the country when he overstayed his period of admission. United Nations Economic and Social Council, Report of Ad Hoc Committee on Statelessness and Related Problems 47 (Mar. 2,1950) (U. N. Doc. E/1618/Corr.l; E/ AC.32/5/Corr.l) (“The expression ‘lawfully within their territory’ throughout this draft Convention would exclude a refugee who while lawfully admitted has overstayed the period for which he was admitted or was authorized to stay or who has violated any other condition attached to his admission or stay”); see also United Nations Economic and Social Council, Report of Ad Hoc Committee on Statelessness and Related Problems, Second Session 11, 120 (Aug. 25, 1950) (U. N. Doc. E/1850; E/AC.32/8). Accord, In re Dunar, 14 I. & N. Dec. 310, 315-318 (BIA 1973) (citing additional authority). 418 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. between the Protocol and existing statutory law could be reconciled by the Attorney General in administration and did not require any modification of statutory language. See, e. g., S. Exec. K, supra, at VIII. United States Refugee Law: 1968-1980 Five years after the United States’ accession to the Protocol, the Board of Immigration Appeals was confronted with the same basic issue confronting us today in the case of In re Dunar, 14 I. & N. Dec. 310 (1973). The deportee argued that he was entitled to withholding of deportation upon a showing of a well-founded fear of persecution, and essentially maintained that a conjectural possibility of persecution would suffice to make the fear “well founded.” The Board rejected that interpretation of “well founded,” and stated that a likelihood of persecution was required for the fear to be “well founded.” Id., at 319. It observed that neither §243(h) nor Article 33 used the term “well-founded fear,” and stated: “Article 33 speaks in terms of threat to life or freedom on account of any of the five enumerated reasons. Such threats would also constitute subjection to persecution within the purview of section 243(h). The latter has also been construed to encompass economic sanctions sufficiently harsh to constitute a threat to life or freedom, Dunat v. Hurney, 297 F. 2d 744 (3 Cir., 1962); cf. Kovac n. INS, 407 F. 2d 102 (9 Cir., 1969). In our estimation, there is no substantial difference in coverage of section 243(h) and Article 33. We are satisfied that distinctions in terminology can be reconciled on a case-by-case consideration as they arise.” Id., at 320. The Board concluded that “Article 33 has effected no substantial changes in the application of section 243(h), either by way of burden of proof, coverage, or manner of arriving at INS v. STEVIC 419 407 Opinion of the Court decisions,” id., at 323,11 and stated that Dunar had failed to establish “the likelihood that he would be persecuted .... Even if we apply the nomenclature of Articles 1 and 33, we are satisfied that respondent has failed to show a well-founded fear that his life or freedom will be threatened,” id., at 324. Although before In re Dunar, the Board and the courts had consistently used a clear-probability or likelihood standard under § 243(h), after that case the term “well-founded fear” was employed in some cases.12 The Court of Appeals for the Seventh Circuit, which had construed § 243(h) as ap 11 The Board observed that the Attorney General had consistently granted withholding under § 243(h) when the required showing was made. Id., at 321-322. 12 See, e. g., Fleurinor v. INS, 585 F. 2d 129, 132-134 (CA5 1978) (“well-founded fear” used by Immigration Judge; “likelihood” and “probable persecution” used by court); Martineau v. INS, 556 F. 2d 306, 307, and n. 2 (CA5 1977) (“‘clear probability’ of persecution” and “likelihood of persecution”); Henry v. INS, 552 F. 2d 130, 131-132 (CA5 1977) (“probable persecution,” “reason to fear persecution” and “well-grounded fear of political persecution”); Pereira-Diaz v. INS, 551 F. 2d 1149, 1154 (CA9 1977) (“well-founded fear”); Coriolan v. INS, 559 F. 2d 993, 997, and n. 8 (CA5 1977) (“well-founded fear that . . . lives or freedom will be threatened” used by Board); Zamora v. INS, 534 F. 2d 1055, 1058 (CA2 1976) (“likelihood of persecution” used by court, “well-founded fear” used by Board); Daniel v. INS, 528 F. 2d 1278, 1279 (CA5 1976) (“probability of persecution”); Paul v. INS, 521 F. 2d 194, 200, and n. 11 (CA5 1975) (“well-founded fear of political persecution”); Gena v. INS, 424 F. 2d 227, 232 (CA5 1970) (“likely to be persecuted”); Kovac v. INS, 407 F. 2d 102, 105, 107 (CA9 1969) (“probability of persecution” and “likelihood”); In re Williams, 16 I. & N. Dec. 697, 700-702, 704 (BIA 1979) (“well-founded fear,” “‘probable persecution’” and “likelihood of persecution”); In re Francois, 15 I. & N. Dec. 534, 539 (BIA 1975) (“well-founded fear that. . . life or freedom will be threatened”); In re Mladineo, 14 I. & N. Dec. 591, 592 (BIA 1974) (“well-founded . . . fear of persecution”); In re Maccaud, 14 I. & N. Dec. 429, 434 (BIA 1973) (“reasonable fear” and “well-founded fear”); In re Bohmwald, 14 I. & N. Dec. 408, 409 (BIA 1973) (“well-founded fear of persecution”). 420 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. plying only to “cases of clear probability of persecution” in a frequently cited case decided before 1968, Lena v. INS, 379 F. 2d 536, 538 (1967), reached the same conclusion in a case decided after the United States’ adherence to the Protocol. Kashani n. INS, 547 F. 2d 376 (1977). In that opinion Judge Swygert reasoned that the “well founded fear of persecution” language could “only be satisfied by objective evidence,” and that it would “in practice converge” with the “clear probability” standard that the Seventh Circuit had previously “engrafted onto [§]243(h).” Id., at 379. Other Courts of Appeals appeared to reach essentially the same conclusion. See e. g., Fleurinor v. INS, 585 F. 2d 129, 132, 134 (CA5 1978); Pereira-Diaz v. INS, 551 F. 2d 1149, 1154 (CA9 1977); Zamora v. INS, 534 F. 2d 1055, 1058, 1063 (CA2 1976). While the Protocol was the source of some controversy with respect to the standard for § 243(h) claims for withholding of deportation, the United States’ accession did not appear to raise any questions concerning the standard to be applied for § 203(a)(7) requests for admission. The “good reason to fear persecution” language was employed in such cases. See, e. g., In re Ugricic, 14 I. & N. Dec., at 385-386.13 13 The ideological and geographic restrictions of § 203(a)(7) itself were not altered after the United States’ accession to the Protocol. The Attorney General continued during this period to use his authority under § 212(d) to parole refugees into the United States. Moreover, in 1974, the Attorney General, acting pursuant to his general authority under 8 U. S. C. § 1103, published regulations permitting applications for asylum to be made to an INS District Director or American consul. 8 CFR §108.1 (1976). The regulations did not explicitly adopt a standard for the exercise of discretion on the application, but did provide that a denial of an asylum application “shall not preclude the alien, in a subsequent expulsion hearing, from applying for the benefits of section 243(h) of the Act and of Articles 32 and 33 of the Convention Relating to the Status of Refugees.” 8 CFR § 108.2 (1976). In 1979, these regulations were amended to provide that a request for asylum made by an alien after commencement of deportation proceedings, or after completion of deportation proceedings, would be considered as a request for withholding or a request to reopen, respectively, “under sec- INS v. STEVIC 421 407 Opinion of the Court IV Section 203(e) of the Refugee Act of 1980 amended the language of § 243(h), basically conforming it to the language of Article 33 of the United Nations Protocol.14 The amendment made three changes in the text of § 243(h), but none of these three changes expressly governs the standard of proof an applicant must satisfy or implicitly changes that standard.15 The amended § 243(h), like Article 33, makes no mention of a probability of persecution or a well-founded fear of persecution. In short, the text of the statute simply does not specify tion 243(h) of the Act and for the benefits of Articles 32 and 33 of the Convention Relating to the Status of Refugees.” 8 CFR §§ 108.3(a) and (b) (1980). This amendment had the effect of conferring jurisdiction over asylum requests on the Board for the first time. See In re Lam, Interim Dec. No. 2857, p. 5, n. 4 (BIA, Mar. 24, 1981). While rejection of an asylum request by an INS District Director or American consul still did not “preclude the alien, in a subsequent expulsion hearing, from applying for the benefits of section 243(h) of the Act and of Articles 32 and 33 of the Convention Relating to the Status of Refugees,” 8 CFR § 108.2 (1980), it appears that requests for asylum were to be judged by the same likelihood-of-persecution standard applicable to § 243(h) claims. Compare §108.1 with § 108.3(a), § 108.3(b), and §242.17(c). 14 Compare supra, at 411, with supra, at 416-417. 18 The amendment (1) substituted mandatory language for what was previously a grant of discretionary authority to the Attorney General to withhold deportation after making the required finding; (2) substituted a requirement that the Attorney General determine that the “alien’s life or freedom would be threatened” for the previous requirement that the alien “would be subject to persecution,” and (3) broadened the relevant causes of persecution from reasons “of race, religion or political opinion” to encompass “nationality” and “membership in a particular social group” as well. The removal of the Attorney General’s discretion to withhold deportation after persecution was established with the requisite degree of certainty relates to the consequences of meeting the standard, and not to the standard itself. While it might be argued that the second and third changes in the text altered the substantive grounds one needs to establish to be entitled to withholding of deportation, contra, infra, at 425-428, neither indicates any diminution in the degree of certainty with which those grounds must be established. 422 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. how great a possibility of persecution must exist to qualify the alien for withholding of deportation. To the extent such a standard can be inferred from the bare language of the provision, it appears that a likelihood of persecution is required.16 The section literally provides for withholding of deportation only if the alien’s life or freedom “would” be threatened in the country to which he would be deported; it does not require withholding if the alien “might” or “could” be subject to persecution. Finally, § 243(h), both prior to and after amendment, makes no mention of the term “refugee”; rather, any alien within the United States is entitled to withholding if he meets the standard set forth. Respondent understandably does not rely upon the specific textual changes in § 243(h) in support of his position that a well-founded fear of persecution entitles him to withholding of deportation. Instead, respondent points to the provision of the Refugee Act which eliminated the ideological and geographical restrictions on admission of refugees under § 203(a)(7) and adopted an expanded version of the United Nations Protocol definition of “refugee.” This definition contains the well-founded-fear language and now appears under § 101(a)(42)(A) of the Immigration and Nationality Act, 8 U. S. C. § 1101(a)(42)(A). Other provisions of the Immigration and Nationality Act, as amended, now provide preferential immigration status, within numerical limits, to those qualifying as refugees under the modified Protocol definition17 and renders a more limited class of refugees, though 16 Noth withstanding the amendment of § 243(h), the regulation governing withholding of deportation claims remains substantively the same: in order to be entitled to a withholding of deportation, the alien “has the burden of satisfying the special inquiry officer that he would be subject to persecution ...,” 8 CFR § 242.17(c) (1983), and the Board of Immigration Appeals, of course, continues to apply a clear-probability or likelihood-of-persecution standard with respect to such claims, as it did in this case. 17 Under an amended § 207, the Attorney General may, within numerical limits, permit aliens who are overseas to immigrate into the United States INS v. STEVIC 423 407 Opinion of the Court still a class broader than the Protocol definition, eligible for a discretionary grant of asylum.18 Respondent, however, is not seeking discretionary relief under these provisions, which explicitly employ the well-founded-fear standard now appearing in § 101(a)(42)(A). Rather, he claims he is entitled to withholding of deportation under § 243(h) upon establishing a well-founded fear of persecution. Section 243(h), however, does not refer to § 101(a)(42)(A). Hence, there is no textual basis in the statute for concluding that the well-founded-fear-of-persecution on the ground of their status as refugees under § 101(a)(42). 8 U. S. C. § 1157. Refugees admitted under § 207, after one year of residence and successful reinspection, attain permanent resident alien status under § 209 of the amended Act. 8 U. S. C. § 1159. 18 A new § 208(a) directed the Attorney General to establish procedures permitting aliens either in the United States or at our borders to apply for “asylum.” 8 U. S. C. § 1158(a). Under § 208(a), in order to be eligible for asylum, an alien must meet the definition of “refugee” contained in § 101(a)(42)(A), a standard that also would qualify an alien seeking to immigrate under § 207. Meeting the definition of “refugee,” however, does not entitle the alien to asylum—the decision to grant a particular application rests in the discretion of the Attorney General under § 208(a). After passage of the Refugee Act, regulations relating to asylum previously contained in 8 CFR § 108 were repealed, and regulations were promulgated under the new § 208 of the Act. Those regulations, like the statute, expressly provide that a “well-founded fear of persecution” renders an alien eligible for a discretionary grant of asylum under §208. 8 CFR §208.5 (1983). We note that when such asylum requests are made after the institution of deportation proceedings, they “shall also be considered as requests” under § 243(h). 8 CFR § 208.3(b) (1983) (emphasis supplied). This does not mean that the well-founded-fear standard is applicable to § 243(h) claims. Section 208.3(b) simply does not speak to the burden of proof issue; rather, it merely eliminates the need for filing a separate request for § 243(h) relief if a §208 claim has been made. We further note that a § 243(h) request is not automatically also considered as a §208 request under the regulations. Indeed, the alien may be barred from asserting a §208 claim while still allowed to invoke § 243(h). See 8 CFR §208.11 (1983). 424 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. standard is relevant to a withholding of deportation claim under § 243(h). Before examining the legislative history of the Refugee Act of 1980 in order to ascertain whether Congress nevertheless intended a well-founded-fear standard to be employed under § 243(h), we observe that the Refugee Act itself does not contain any definition of the “well-founded fear of persecution” language contained in § 101(a)(42)(A). The parties vigorously contest whether the well-founded-fear standard is coterminous with the clear-probability-of-persecution standard. Initially, we do not think there is any serious dispute regarding the meaning of the clear-probability standard under the § 243(h) case law.19 The question under that standard is whether it is more likely than not that the alien would be subject to persecution. The argument of the parties on this point is whether the well-founded-fear standard is the same as the clear-probability standard as just defined, or whether it is more generous to the alien. Petitioner argues that persecution must be more likely than not for a fear of persecution to be considered “well founded.” The positions of respondent and several amici curiae are somewhat amorphous. Respondent seems to maintain that a fear of persecution is “well founded” if the evidence establishes some objective basis in reality for the fear. This would appear to mean that so long as the fear is not imaginary—i. e., if it is founded in reality at all—it is “well founded.” A more moderate position is that so long as an objective situation is established by the evidence, it need not be 19 The term “clear probability” was used interchangeably with “likelihood”; the use of the word “clear” appears to have been surplusage. We think there is no merit to the suggestion that the Board was applying a “clear and convincing” standard to the persecution issue. See generally Addington v. Texas, 441 U. S. 418, 423-425 (1979). The Board is, of course, quite familiar with the clear-and-convincing standard, since the Government is held to that standard in deportation proceedings. Woodby v. INS, 385 U. S. 276 (1966). INS v. STEVIC 425 407 Opinion of the Court shown that the situation will probably result in persecution, but it is enough that persecution is a reasonable possibility. Petitioner and respondent seem to agree that prior to passage of the Refugee Act, the Board and the courts actually used a clear-probability standard for § 243(h) claims. That is, prior to the amendment, § 243(h) relief would be granted if the evidence established that it was more likely than not that the alien would be persecuted in the country to which he was being deported; relief would not be granted merely upon a showing of some basis in reality for the fear, or if there was only a reasonable possibility of persecution falling short of a probability. Petitioner argues that some of the prior case law using the term “well-founded fear” simply used that term interchangeably with the phrase “clear probability.” Respondent agrees in substance, but argues that although prior cases employed the term “well-founded fear,” they misconstrued the meaning of the term under the United Nations Protocol. For purposes of our analysis, we may assume, as the Court of Appeals concluded, that the well-founded-fear standard is more generous than the clear-probability-of-persecution standard because we can identify no basis in the legislative history for applying that standard in § 243(h) proceedings or any legislative intent to alter the pre-existing practice. The principal motivation for the enactment of the Refugee Act of 1980 was a desire to revise and regularize the procedures governing the admission of refugees into the United States. The primary substantive change Congress intended to make under the Refugee Act, and indeed in our view the only substantive change even relevant to this case, was to eliminate the piecemeal approach to admission of refugees previously existing under § 203(a)(7) and § 212(d)(5) of the Immigration and Nationality Act, and §108 of the regulations, and to establish a systematic scheme for admission and resettlement of refugees. S. Rep. No. 96-256, p. 1 (1979) (S. Rep.); H. R. Rep. No. 96-608, pp. 1-5 (1979) (H. R. 426 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. Rep.). The Act adopted, and indeed, expanded upon, the Protocol definition of “refugee,” S. Rep., at 19; H. R. Rep., at 9-10, and intended that the definition would be construed consistently with the Protocol, S. Rep., at 9, 20. It was plainly recognized, however, that “merely because an individual or group of refugees comes within the definition will not guarantee resettlement in the United States. The Committee is of the opinion that the new definition does not create a new and expanded means of entry, but instead regularizes and formalizes the policies and practices that have been followed in recent years.” H. R. Rep., at 10. The Congress distinguished between discretionary grants of refugee admission or asylum and the entitlement to a withholding of deportation if the § 243(h) standard was met. See id., at 17-18.20 20 The House Judiciary Committee Report stated: “Asylum and Withholding of Deportation “Since 1968, the United States has been a party to the United States Refugee Protocol which incorporates the substance of the 1951 U.N. Convention of Refugees and which seeks to insure fair and humane treatment for refugees within the territory of the contracting states. “Article 33 of the Convention, with certain exceptions, prohibits contracting states from expelling or returning a refugee to a territory where his or her life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group or political opinion. The Committee Amendment conforms United States statutory law to our obligations under Article 33 in two of its provisions: “(1) Asylum.—The Committee Amendment establishes for the first time a provision in Federal law specifically relating to asylum. . . . “Currently, United States asylum procedures are governed by regulations promulgated by the Attorney General under the authority of section 103 of the Immigration and Nationality Act (see 8 CFR 108), which grants the Attorney General authority to administer and enforce laws relating to immigration. No specific statutory basis for United States asylum policy currently exists. The asylum provision of this legislation would provide such a basis. “The Committee wishes to insure a fair and workable asylum policy which is consistent with this country’s tradition of welcoming the oppressed of other nations and with our obligations under international law, INS v. STEVIC 427 407 Opinion of the Court Elimination of the geographic and ideological restrictions under the former § 203(a)(7) was thought to bring the United States’ scheme into conformity with its obligations under the Protocol, see S. Rep., at 4, 15-16,21 and in our view these references are to the United States’ obligations under Article 34 to facilitate the naturalization of refugees within the definition of the Protocol. There is, as always, some ambiguity in the legislative history—the term “asylum,” in particular, seems to be used in various ways, see, e. g., S. Rep., at 9, 16—but that is understandable given that the same problem with nomenclature has been evident in case law as well. See In re Lam, Interim Dec. No. 2857, p. 5 (BIA, Mar. 24, 1981). and feels it is both necessary and desirable that United States domestic law include the asylum provision in the instant legislation. . . . “(2) Withholding of Deportation.—Related to Article 33 is the implementation of section 243(h) of the Immigration and Nationality Act. That section currently authorizes the Attorney General to withhold the deportation of any alien in the United States to any country where, in his opinion, the alien would be subject to persecution on account of race, religion, or political opinion. “Although this section has been held by court and administrative decisions to accord to aliens the protection required under Article 33, the Committeefeels it is desirable, for the sake of clarity, to conform the language of that section to the Convention. This legislation does so by prohibiting, with certain exceptions, the deportation of an alien to any country if the Attorney General determines that the alien’s life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion. . . . “As with the asylum provision, the Committee feels that the proposed change in section 2Ji.3(h) is necessary so that U. S. statutory law clearly reflects our legal obligations under international agreements.” H. R. Rep., at 17-18 (emphasis supplied). 21 “As amended by the Committee, the bill establishes an asylum provision in the Immigration and Nationality Act for the first time by improving and clarifying the procedures for determining asylum claims filed by aliens who are physically present in the United States. The substantive standard is not changed; asylum will continue to be granted only to those who qualify under the terms of the United Nations Protocol Relating to the Status of Refugees, to which the United States acceded in November [1968].” S. Rep., at 9. 428 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. Going to the substance of the matter, however, it seems clear that Congress understood that refugee status alone did not require withholding of deportation, but rather, the alien had to satisfy the standard under §243(h), S. Rep., at 16. The amendment of § 243(h) was explicitly recognized to be a mere conforming amendment, added “for the sake of clarity,” and was plainly not intended to change the standard. H. R. Rep., at 17-18. The Court of Appeals’ decision rests on the mistaken premise that every alien who qualifies as a “refugee” under the statutory definition is also entitled to a withholding of deportation under § 243(h). We find no support for this conclusion in either the language of § 243(h), the structure of the amended Act, or the legislative history.22 22 Nor is there any merit to respondent’s argument that this construction is inconsistent with the Protocol. Existing domestic statutory law in 1968 was largely consistent with the Protocol. Under the Protocol, however, attaining the status of “refugee” was essential in order for an alien to assert his right under Article 33 to avoid deportation, and then he was protected only against deportation to a territory where his “life or freedom” would be threatened. Under our statutory scheme, on the other hand, no alien in the United States would be deported to a country where he was likely to be “persecuted,” a seemingly broader concept than threats to “life or freedom.” In addition, the alien would qualify for withholding even if he might not be a “refugee” under the Protocol because, for example, he was not outside his country of nationality owing to a fear of persecution. Cf. Rosenberg n. Yee Chien Woo, 402 U. S. 49, 57 (1971). Moreover, the domestic statute and regulations provided many additional procedural safeguards as well, including a right to be represented by counsel and a right to judicial review. While refugee status was not essential to avoid withholding of deportation, it was essential under domestic law to qualify for preferential immigration status. Our definition of a “refugee” under § 203(a)(7) was of course consistent with the Protocol. Indeed, the relevant statutory language virtually mirrored the Protocol definition. The geographic and ideological limitations were limits on admission. That was not inconsistent with the Protocol—the Protocol did not require admission at all, nor did it preclude a signatory from exercising judgment among classes of refugees within the Protocol definition in determining whom to admit. Article 34 merely INS v. STEVIC 429 407 Opinion of the Court We have deliberately avoided any attempt to state the governing standard beyond noting that it requires that an application be supported by evidence establishing that it is more called on nations to facilitate the admission of refugees to the extent possible; the language of Article 34 was precatory and not self-executing. The point is not, however, that the Senate was merely led to believe accession would work no substantial change in the law; the point is that it did not work a substantial change in the law. There were of course differences between the Protocol and the text of domestic law. The most significant difference was that Article 33 gave the refugee an entitlement to avoid deportation to a country in which his life or freedom would be threatened, whereas domestic law merely provided the Attorney General with discretion to grant withholding of deportation on grounds of persecution. The Attorney General, however, could naturally accommodate the Protocol simply by exercising his discretion to grant such relief in each case in which the required showing was made, and hence no amendment of the existing statutory language was necessary. There were other differences between the Protocol and the text of domestic statutory law in 1968—e. g., the Protocol provides protection for those persecuted on grounds of nationality and membership in social groups, as well as race, religion, or political opinion. Given our existing statutory provisions, and the considerable discretion an administrator such as the Attorney General possesses in interpreting and implementing such statutory provisions, once again, no amendment of the statute was necessary. Finally, the Protocol required a showing that the “refugee’s life or freedom would be threatened,” while § 243(h) required that the alien would be subject to “persecution.” Although one might argue that the concept of “persecution” is broad enough to encompass matters other than threats to “life or freedom”—deprivations of property, for example—and therefore that the Protocol was narrower than the coverage of the section, we perceive no basis for concluding that the particular mention of the alien’s interest in “life or freedom” made the Protocol any more generous than domestic law. In summary, then, to the extent that domestic law was more generous* than the Protocol, the Attorney General would not alter existing practice; to the extent that the Protocol was more generous than the bare text of § 243(h) would necessarily require, the Attorney General would honor the requirements of the Protocol and hence there was no need for modifying the language of § 243(h) itself. As the Secretary of State correctly explained at the time of consideration of the Protocol: “[F]oremost among the rights which the Protocol would guarantee to refugees is the prohibition (under Article 33 of the Convention) against their expulsion or return to 430 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. likely than not that the alien would be subject to persecution on one of the specified grounds. This standard is a familiar one to immigration authorities and reviewing courts, and Congress did not intend to alter it in 1980. We observe that shortly after adoption of the Refugee Act, the Board explained: “As we have only quite recently acquired jurisdiction over asylum claims, we are only just now beginning to resolve some of the problems caused by this addition to our jurisdiction, including the problem of determining exactly how withholding of deportation and asylum are to fit together.” In re Lam, Interim Dec. No. 2857, p. 6, n. 4 (BIA, Mar. 24, 1981). Today we resolve one of those problems by deciding that the “clear probability of persecution” standard remains applicable to § 243(h) withholding of deportation claims. We do not decide the meaning of the phrase “well-founded fear of persecution” which is applicable by the terms of the Act and regulations to requests for discretionary asylum. That issue is not presented by this case. The Court of Appeals granted respondent relief based on its understanding of a standard which, even if properly understood, does not entitle an alien to withholding of deportation under § 243(h). Our holding does, of course, require the Court of Appeals to reexamine this record to determine whether the evidence submitted by respondent entitles him to a plenary hearing under the proper standard. The judgment of the Court of Appeals is reversed, and the cause is remanded for further proceedings consistent with this opinion. It is so ordered. any country in which their life or freedom would be threatened. This article is comparable to Section 243(h) of the Immigration and Nationality Act . . . and it can be implemented within the administrative discretion provided by existing regulations.” S. Exec. K, 90th Cong., 2d Sess., VIII (1968). NIX v. WILLIAMS 431 Syllabus NIX, WARDEN OF THE IOWA STATE PENITENTIARY v. WILLIAMS CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 82-1651. Argued January 18, 1984—Decided June 11, 1984 Following the disappearance of a 10-year-old girl in Des Moines, Iowa, respondent was arrested and arraigned in Davenport, Iowa. The police informed respondent’s counsel that they would drive respondent back to Des Moines without questioning him, but during the trip one of the officers began a conversation with respondent that ultimately resulted in his making incriminating statements and directing the officers to the child’s body. A systematic search of the area that was being conducted with the aid of 200 volunteers and that had been initiated before respondent made the incriminating statements was terminated when respondent guided police to the body. Before trial in an Iowa state court for first-degree murder, the court denied respondent’s motion to suppress evidence of the body and all related evidence, including the body’s condition as shown by an autopsy, respondent having contended that such evidence was the fruit of his illegally obtained statements made during the automobile ride. Respondent was convicted, and the Iowa Supreme Court affirmed, but later federal-court habeas corpus proceedings ultimately resulted in this Court’s holding that the police had obtained respondent’s incriminating statements through interrogation in violation of his Sixth Amendment right to counsel. Brewer v. 'Williams, 430 U. S. 387. However, it was noted that even though the statements could not be admitted at a second trial, evidence of the body’s location and condition might be admissible on the theory that the body would have been discovered even if the incriminating statements had not been elicited from respondent. Id., at 407, n. 12. At respondent’s second statecourt trial, his incriminating statements were not offered in evidence, nor did the prosecution seek to show that respondent had directed the police to the child’s body. However, evidence concerning the body’s location and condition was admitted, the court having concluded that the State had proved that if the search had continued the body would have , been discovered within a short time in essentially the same condition as it was actually found. Respondent was again convicted of first-degree murder, and the Iowa Supreme Court affirmed. In subsequent habeas corpus proceedings, the Federal District Court, denying relief, also concluded that the body inevitably would have been found. However, the 432 OCTOBER TERM, 1983 Syllabus 467 U. S. Court of Appeals reversed, holding that—even assuming that there is an inevitable discovery exception to the exclusionary rule—the State had not met the exception’s requirement that it be proved that the police did not act in bad faith. Held: The evidence pertaining to the discovery and condition of the victim’s body was properly admitted at respondent’s second trial on the ground that it would ultimately or inevitably have been discovered even if no violation of any constitutional provision had taken place. Pp. 440-450. (a) The core rationale for extending the exclusionary rule to evidence that is the fruit of unlawful police conduct is that such course is needed to deter police from violations of constitutional and statutory protections notwithstanding the high social cost of letting obviously guilty persons go unpunished. On this rationale, the prosecution is not to be put in a better position than it would have been in if no illegality had transpired. By contrast, the independent source doctrine—allowing admission of evidence that has been discovered by means wholly independent of any constitutional violation—rests on the rationale that society’s interest in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred. Although the independent source doctrine does not apply here, its rationale is wholly consistent with and justifies adoption of the ultimate or inevitable discovery exception to the exclusionary rule. If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means—here the volunteers’ search—then the deterrence rationale has so little basis that the evidence should be received. Pp. 441-444. (b) Under the inevitable discovery exception, the prosecution is not required to prove the absence of bad faith, since such a requirement would result in withholding from juries relevant and undoubted truth that would have been available to police absent any unlawful police activity. This would put the police in a worse position than they would have been in if no unlawful conduct had transpired, and would fail to take into account the enormous societal cost of excluding truth in the search for truth in the administration of justice. Significant disincentives to obtaining evidence illegally—including the possibility of departmental discipline and civil liability—lessen the likelihood that the ultimate or inevitable discovery exception will promote police misconduct. Pp. 445-446. (c) There is no merit to respondent’s contention that because he did not waive his right to the assistance of counsel, and because the Sixth Amendment exclusionary rule is designed to protect the right to a fair NIX v. WILLIAMS 433 431 Syllabus trial, competing values may not be balanced in deciding whether the challenged evidence was properly admitted. Exclusion of physical evidence that would inevitably have been discovered adds nothing to either the integrity or fairness of a criminal trial. Nor would suppression ensure fairness on the theory that it tends to safeguard the adversary system of justice. Pp. 446-448. (d) The record here supports the finding that the search party ultimately or inevitably would have discovered the victim’s body. The evidence clearly shows that the searchers were approaching the actual location of the body, that the search would have been resumed had respondent not led the police to the body, and that the body inevitably would have been found. Pp. 448-450. 700 F. 2d 1164, reversed and remanded. Burger, C. J., delivered the opinion of the Court, in which White, Blackmun, Powell, Rehnquist, and O’Connor, JJ., joined. White, J., filed a concurring opinion, post, p. 450. Stevens, J., filed an opinion concurring in the judgment, post, p. 451. Brennan, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 458. Brent R. Appel, Deputy Attorney General of Iowa, argued the cause for petitioner. With him on the briefs were Thomas J. Miller, Attorney General, and Thomas D. McGrane, Assistant Attorney General. Kathryn A. Oberly argued the cause for the United States as amicus curiae urging reversal. With her on the brief were Solicitor General Lee, Assistant Attorney General Trott, Deputy Solicitor General Frey, and Joel M. Gershowitz. Robert Bartels, by appointment of the Court, 462 U. S. 1129, argued the cause and filed briefs for respondent.* * James E. Duggan filed a brief for the National Legal Aid and Defender Association as amicus curiae urging affirmance. Briefs of amici curiae were filed for the State of Illinois et al. by Neil F. Hartigan, Attorney General of Illinois, Paul P. Biebel, Jr., First Assistant Attorney General, Steven F. Molo, Assistant Attorney General, and by the Attorneys General for their respective jurisdictions as follows: Charles A. Graddick of Alabama, Norman C. Gorsuch of Alaska, Robert K. Corbin of Arizona, Duane Woodard of Colorado, Charles M. Oberly III of Delaware, Jim Smith of Florida, Michael J. Bowers of Georgia, Tany S. Hong of Hawaii, Jim Jones of Idaho, Linley E. Pearson of Indiana, Robert T. Stephan of Kansas, Steven L. Beshear of Kentucky, William J. Guste, Jr., 434 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. Chief Justice Burger delivered the opinion of the Court. We granted certiorari to consider whether, at respondent Williams’ second murder trial in state court, evidence pertaining to the discovery and condition of the victim’s body was properly admitted on the ground that it would ultimately or inevitably have been discovered even if no violation of any constitutional or statutory provision had taken place. I A On December 24, 1968, 10-year-old Pamela Powers disappeared from a YMCA building in Des Moines, Iowa, where she had accompanied her parents to watch an athletic contest. Shortly after she disappeared, Williams was seen leaving the YMCA carrying a large bundle wrapped in a blanket; a 14-year-old boy who had helped Williams open his car door reported that he had seen “two legs in it and they were skinny and white.” Williams’ car was found the next day 160 miles east of Des Moines in Davenport, Iowa. Later several items of clothing belonging to the child, some of Williams’ clothing, and an army blanket like the one used to wrap the bundle that Williams carried out of the YMCA were found at a rest stop on of Louisiana, James E. Tierney of Maine, Stephen H. Sachs of Maryland, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, William A. Allain of Mississippi, Michael T. Greely of Montana, Paul L. Douglas of Nebraska, Brian McKay of Nevada, Gregory H. Smith of New Hampshire, Rufus L. Edmisten of North Carolina, Robert Wefald of North Dakota, Michael Turpen of Oklahoma, LeRoy S. Zimmerman of Pennsylvania, Hector Reichard of Puerto Rico, Travis Medlock of South Carolina, Mark V. Meierhenry of South Dakota, William M. Leech, Jr., of Tennessee, David L. Wilkinson of Utah, John J. Easton of Vermont, Gerald L. Baliles of Virginia, Kenneth 0. Eikenberry of Washington, Chauncey H. Browning of West Virginia, Bronson C. La Follette of Wisconsin, and Archie G. McClintock of Wyoming; and for the Legal Foundation of America et al. by David Crump, Wayne Schmidt, and James P. Manak. NIX v. WILLIAMS 435 431 Opinion of the Court Interstate 80 near Grinnell, between Des Moines and Davenport. A warrant was issued for Williams’ arrest. Police surmised that Williams had left Pamela Powers or her body somewhere between Des Moines and the Grinnell rest stop where some of the young girl’s clothing had been found. On December 26, the Iowa Bureau of Criminal Investigation initiated a large-scale search. Two hundred volunteers divided into teams began the search 21 miles east of Grinnell, covering an area several miles to the north and south of Interstate 80. They moved westward from Poweshiek County, in which Grinnell was located, into Jasper County. Searchers were instructed to check all roads, abandoned farm buildings, ditches, culverts, and any other place in which the body of a small child could be hidden. Meanwhile, Williams surrendered to local police in Davenport, where he was promptly arraigned. Williams contacted a Des Moines attorney who arranged for an attorney in Davenport to meet Williams at the Davenport police station. Des Moines police informed counsel they would pick Williams up in Davenport and return him to Des Moines without questioning him. Two Des Moines detectives then drove to Davenport, took Williams into custody, and proceeded to drive him back to Des Moines. During the return trip, one of the policemen, Detective Learning, began a conversation with Williams, saying: “I want to give you something to think about while we’re traveling down the road... . They are predicting several inches of snow for tonight, and I feel that you yourself are the only person that knows where this little girl’s body is . . . and if you get a snow on top of it you yourself may be unable to find it. And since we will be going right past the area [where the body is] on the way into Des Moines, I feel that we could stop and locate the body, that the parents of this little girl should be entitled to a Christian burial for the little girl who was snatched away from them on Christmas [E]ve and murdered. . . . 436 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. [A]fter a snow storm [we may not be] able to find it at all.” Learning told Williams he knew the body was in the area of Mitchellville—a town they would be passing on the way to Des Moines. He concluded the conversation by saying: “I do not want you to answer me. . . . Just think about it . . . .” Later, as the police car approached Grinnell, Williams asked Learning whether the police had found the young girl’s shoes. After Learning replied that he was unsure, Williams directed the police to a point near a service station where he said he had left the shoes; they were not found. As they continued the drive to Des Moines, Williams asked whether the blanket had been found and then directed the officers to a rest area in Grinnell where he said he had disposed of the blanket; they did not find the blanket. At this point Learning and his party were joined by the officers in charge of the search. As they approached Mitchellville, Williams, without any further conversation, agreed to direct the officers to the child’s body. The officers directing the search had called off the search at 3 p. m., when they left the Grinnell Police Department to join Learning at the rest area. At that time, one search team near the Jasper County-Polk County line was only two and one-half miles from where Williams soon guided Learning and his party to the body. The child’s body was found next to a culvert in a ditch beside a gravel road in Polk County, about two miles south of Interstate 80, and essentially within the area to be searched. B First Trial In February 1969 Williams was indicted for first-degree murder. Before trial in the Iowa court, his counsel moved to suppress evidence of the body and all related evidence including the condition of the body as shown by the autopsy. The ground for the motion was that such evidence was the “fruit” NIX v. WILLIAMS 437 431 Opinion of the Court or product of Williams’ statements made during the automobile ride from Davenport to Des Moines and prompted by Learning’s statements. The motion to suppress was denied. The jury found Williams guilty of first-degree murder; the judgment of conviction was affirmed by the Iowa Supreme Court. State v. Williams, 182 N. W. 2d 396 (1970). Williams then sought release on habeas corpus in the United States District Court for the Southern District of Iowa. That court concluded that the evidence in question had been wrongly admitted at Williams’ trial, Williams v. Brewer, 375 F. Supp. 170 (1974); a divided panel of the Court of Appeals for the Eighth Circuit agreed. 509 F. 2d 227 (1974). We granted certiorari, 423 U. S. 1031 (1975), and a divided Court affirmed, holding that Detective Learning had obtained incriminating statements from Williams by what was viewed as interrogation in violation of his right to counsel. Brewer v. Williams, 430 U. S. 387 (1977). This Court’s opinion noted, however, that although Williams’ incriminating statements could not be introduced into evidence at a second trial, evidence of the body’s location and condition “might well be admissible on the theory that the body would have been discovered in any event, even had incriminating statements not been elicited from Williams.” Id., at 407, n. 12. C Second Trial At Williams’ second trial in 1977 in the Iowa court, the prosecution did not offer Williams’ statements into evidence, nor did it seek to show that Williams had directed the police to the child’s body. However, evidence of the condition of her body as it was found, articles and photographs of her clothing, and the results of post mortem medical and chemical tests on the body were admitted. The trial court concluded that the State had proved by a preponderance of the evidence that, if the search had not been suspended and Williams had not led the police to the victim, her body would have been 438 OCTOBER TERM, 1983 Opinion of the Court 467 U. S. discovered (