I ■■■■I FDLP152575 5VC. s 7V/ !r-~ •* dOP roi ^3r p?J \yP j^ÇôSr^ ■^•7i ¿g/ UNITED STATES REPORTS VOLUME 485 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1987 February 24 Through May 13, 1988 FRANK D. WAGNER REPORTER OF DECISIONS UNITED STATES GOVERNMENT PRINTING OFFICE WASHINGTON : 1991 Printed on Uncoated Permanent Printing Paper Errata 467 U. S. 844, line 7: “provison” should be “provision”. 484 U. S. 51, note, line 5: “Scott M. DuBoff,” should be added before “McNeill Watkins II”. ii JUSTICES OF THE SUPREME COURT DURING THE TIME OF THESE REPORTS WILLIAM H. REHNQUIST, Chief Justice. WILLIAM J. BRENNAN, Jr., Associate Justice. BYRON R. WHITE, Associate Justice. THURGOOD MARSHALL, Associate Justice. HARRY A. BLACKMUN, Associate Justice. JOHN PAUL STEVENS, Associate Justice. SANDRA DAY O’CONNOR, Associate Justice. ANTONIN SCALIA, Associate Justice. ANTHONY M. KENNEDY, Associate Justice. retired WARREN E. BURGER, Chief Justice. LEWIS F. POWELL, Jr., Associate Justice. OFFICERS OF THE COURT EDWIN MEESE III, Attorney General. CHARLES FRIED, Solicitor General. JOSEPH F. SPANIOL, Jr., Clerk. FRANK D. WAGNER, Reporter of Decisions. ALFRED WONG, Marshal. STEPHEN G. MARGETON, 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 February 18, 1988, viz.: For the District of Columbia Circuit, William H. Rehnquist, 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, William H. Rehnquist, Chief Justice. For the Fifth Circuit, Byron R. White, Associate Justice. For the Sixth Circuit, Antonin Scalia, Associate Justice. For the Seventh Circuit, John Paul Stevens, Associate Justice. For the Eighth Circuit, Harry A. Blackmun, Associate Justice. For the Ninth Circuit, Sandra Day O’Connor, Associate Justice. For the Tenth Circuit, Byron R. White, Associate Justice. For the Eleventh Circuit, Anthony M. Kennedy, Associate Justice. For the Federal Circuit, William H. Rehnquist, Chief Justice. February 18, 1988. (For next previous allotment, and modifications, see 479 U. S., p. v, 483 U. S., pp. v, vi, and 484 U. S., pp. v, 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 901 are those decided with opinions of the Court or decisions per curiam. Cases reported on page 901 et seq. are those in which orders were entered. Page Abacus Mortgage Investment Co. v. Sutton Place Development Co. 961 Abbamonte v. United States................................... 1021 Abbott; Meese v.............................................. 1020 Aberdeen Proving Ground; Federal Labor Relations Authority v. . 409 Able v. Upjohn Co............................................. 963 Abokhai v. United States...................................... 907 Abourezk; Vigil v. i966 Abraham v. DeFelice .......................................... 937 Abudu; Immigration and Naturalization Service v. ............... 94 A. C. v. Iowa............................................... 1008 Acton Corp.; Inscoe v. . .1.;.... 977 Adams v. Department of Navy.................................. 1023 Adams; Dugger v............................................... 933 Adams v. Pan American World Airways, Inc...................... 961 Adams Drug Co.; Becker v...................................... 930 Adams House Health Care; Bowen v............................. 1018 Adams Printing & Stationery Co. v. May Centers, Inc........... 944 Adirondack Chair Co. v. Commissioner of Finance of New York City 949 Adult Parole Authority of Ohio; Walls v...................... 1036 Aetna Casualty & Surety Co.; Oberg v.......................... 969 Aetna Life & Casualty; Murphy v. ............................. 944 Afifi v. Hodel.................................................. 966 Agnew v. Alicanto, S. A...................................... 1021 Agostino v. United States....................................... 980 Ahlers; Norwest Bank Worthington v............................ 197 Aiello v. Martin ............................................ 1008 Ainsworth v. Shell Offshore Inc.............................. 1034 Air Fla. System, Inc. v. Federal Deposit Ins. Corp............ 987 Akao; Shimoda v................................................. 993 VI TABLE OF CASES REPORTED Page Akbar v. United States.......................................... 969 Alabama; Arrant v. ........................................... 976 Alabama; Brooks v.............................................. 1009 Alabama; Brown v............................................... 961 Alabama; Hays v................................................. 929 Alabama; Hornsby v.............................................. 961 Alabama Agricultural and Mechanical Univ.; Teng v.............. 1034 Alabama and Miss. Boundary Case.................................. 88 Alabama Bd. of Pardons and Paroles v. Ellard.................... 981 Alaska; Tempel v. ............................................. 1016 Alaska Dept, of Health and Social Services; Tanama v............ 951 Alaska Electric Light & Power; Alaska Trams Corp. v. ........... 905 Alaska Federation of Natives v. Alaska Fish & Wildlife Federation 988 Alaska Fish & Wildlife Federation; Alaska Federation of Natives v. 988 Alaska Trams Corp. v. Alaska Electric Light & Power............. 905 Albuquerque; Snead v........................................... 1009 Aiderman v. Georgia........................................ 943,1030 Alevras v. Edmiston............................................. 990 Alexander, In re............................................... 1021 Alford; James v................................................ 1036 Alicanto, S. A.; Agnew v. ..................................... 1021 Allegheny Pittsburgh Coal Co. v. County Comm’n of Webster Cty. 976 Allen v. Estelle............................................... 1023 Allen-Sherman-Hoff Co. v. Callowhill............................ 962 Allsbrook; Parks v. . < 1036 Alltech Associates, Inc.; Erickson v.. 943 Almeida-Biffi v. United States................................. 1010 Alston v. Marine Midland Bank, N. A............................ 1013 Amadeo v. Kemp.................................................. 903 Amen-Ra, In re................................................. 1004 Amerada Hess Shipping Corp.; Argentine Republic v.............. 1005 American Fermac, Inc. v. United States.......................... 901 Ameron, Inc.; Army Corps of Engineers v......................... 958 Amtrak Railroad Corp.; Robinson v............................... 965 Anchor Estates, Inc. v. United States........................... 989 Anderson; Maryland v............................................ 913 Andras; Illinois Dept, of Revenue v............................. 960 Andrews; Masters, Mates & Pilots v. ........................... 962 Andrews v. Shulsen......................................... 919,1015 Angel v. Froehlich.............................................. 984 ANR Pipeline Co.; Schneidewind v. ............................ 293 Apel; Pearl v................................................... 966 Appellate Dept., Superior Court of Cal., Los Angeles Cty.; Roberts v. 1009 Arabian; Kilgroe v. ............................................ 962 TABLE OF CASES REPORTED VII Page Arambulo v. United States....................................... 1039 Arcadia; Duffy v................................................ 901 Arcoren v. Peters............................................... 987 Argentine Republic v. Amerada Hess Shipping Corp................ 1005 Arias; Juarbe Angueria v. ....... f............................. 960 Arizona v. Chicago Title Ins. Co................................. 909 Arizona v. Feld.................................................. 977 Arizona; Tocco v................................................. 963 Arizona v. Youngblood....................................... 903,1033 Arkansas; Bennett v.............................................. 395 Arkansas v. Mayfield............................................. 905 Arkansas Best Corp. v. Commissioner.............................. 212 Arkansas Public Service Comm’n; Southwestern Bell Tel. Co. v.... 989 Arlington County; Wise v. ...................................y. 1029 Arlt, In re...................................................... 972 Armco, Inc.; Porto v. ........................................... 937 Armijo v. United States.......................................... 990 Armontrout; Johnson v. ......................... :1015 Armontrout; Tatum v.............................................. 966 Armstrong v. Risley............................................ 1010 Army Corps of Engineers v. Ameron, Inc........................... 958 Arrant v. Alabama................................................ 976 Arthur; Williams v............................................... 967 Arthur Young & Co. v. Burull..................................... 961 Arunga v. Johnson................................................ 930 Ashcroft; Lembeck v............................................ 966 Associated Gas Distributors; Shell Offshore Inc. v................ 1006 Association. For labor union, see name of trade. Atkinson v. United States........................................ 987 Atkinson Co. of Cal. v. Commissioner............................. 970 Atlanta; Turner v................................................ 934 Atlantic City; Rydell v....l ................ 1004 Atonio v. Wards Cove Packing Co.................................. 989 Attorney General v. Abbott...................................... 1020 Attorney General; Deering v...................................... 965 Attorney General; Slyper v. ..................................... 941 Attorney General of La. v. United States........................ 1033 Attorney General of N. J. v. First Family Mortgage Corp, of Fla.. 957 Attorney General of Pa. v. Para-Professional Law Clinic.......... 993 Attorney General of Tex.; Klein Independent School Dist. v... 1008 Auerbach; Terminal Realty Penn Co. v............................ 905 Auidi v. United States........................................... 978 Auriemma v. United States........................................ 968 Aurora v. Nephew................................................. 976 VIII TABLE OF CASES REPORTED Page Automobile Workers; Lyng v......................................... 360 Autothority, Inc.; Brailey v.................................... 1010 Avery v. Wisconsin................................................. 937 Avondale Shipyards, Inc.; Shipco 2295, Inc. v.................... 1007 Ayers v. United States........................................... 939 Azzarelli; Estus v.............................................. 1013 Badia v. United States........................................... 937 Bagley v. North Carolina........................................ 1036 Bair; Boggs v.................................................... 993 Baja Contractors, Inc. v. Chicago................................ 993 Baker; South Carolina v. ................................... 505,931 Balawajder v. Lynaugh............................................ 968 Baltic Enterprises, Inc.; New Bedford Fishermen’s Welfare Fund v. 904 Baltimore, In re................................................. 985 Bank of Nova Scotia v. United States......................... 932,956 Banks v. Mississippi ........................................ 1008 Banque de Paris et des Pays-Bas; Exxon Co. v. ............... 1020 Barasch; Duquesne Light Co. v............................ 933,1003 Barge CERES; Farwest Steel Corp. v........................... 1034 Barge SEA-SPAN 241; Farwest Steel Corp. v.................... 1034 Barnard v. Texas.............................................. 929 Barry; Boos v................................................. 312 Barry v. Grano................................................ 971 Bartie v. United States....................................... 969 Basic Inc. v. Levinson........................................ 224 Beam v. Foltz................................................. 980 Bean v. United States......................................... 988 Bean Dredging Corp. v. Olsen................................. 1034 Beàttie v. United States................................. 978,1006 Beauford v. Father Flanagan’s Boys’ Home...................... 938 Beck v. Manufacturers Hanover Trust Co....................... 1030 Becker v. Adams Drug Co....................................... 930 Beckman; Union de Transports Aeriens v. ...................... 934 Becton Dickinson & Co.; Budinich v............................ 956 Beech Aerospace Services, Inc. v. Rainey...................... 903 Beech Aircraft Corp. v. Rainey................................ 903 Beepier v. Washington......................................... 972 Begay v. United States........................................ 935 B. E. & K. Communications, Inc.; Golden Cable Co. v.......... 962 B. E. & K. Communications, Inc.; Teague v.................... 962 Bell v. Bell.................................................. 950 Bell v. United States.................................... 934,1042 Belmont, In re................................................ 952 Belzberg; Lou v............................................... 993 TABLE OF CASES REPORTED IX Page Bemis Pentecostal Church v. Tennessee........................... 930,1029 Benjamin v. U. S. Postal Service..................................... 990 Bennett v. Arkansas.................................................. 395 Bennett; General Motors Corp. v...................................... 941 Bennett; Honig v..................................................... 988 Bennett v. International Bank of Miami, N. A......................... 988 Bennett v. Westfall................................................. 1037 Bently v. United States............................................. 1020 Berkovitz v. United States ....................................... 985 Bespalchenko v. German Federal Government....................... 979,1042 Best v. Maryland..................................................... 978 Bethel Baptist Church v. United States............................... 959 Bethesda Hospital Assn. v. Bowen.................................... 399 Bettistea v. Michigan ............................................... 964 Beyer; Nigro v....................................................... 980 Bicoy v. Hawaii ..................................................... 962 Bigham v. Illinois............................................. 1011 Bilal v. Montgomery Ward & Co........................................ 979 Birdsell v. Leach.................................................... 938 Bissonette; Haig v. ................................................ 264 Black; Employment Div., Dept, of Human Resources of Ore. v. ... 660 Blackbum; Foltz v. .................................................. 970 Blatty v. New York Times Co.......................................... 934 Block Drug Co. v. Hodosh....................................... 1007 Blood Bank at Wadley v. Houston................................ 1008 Bloor v. Montgomery County............,.............................. 961 Blume v. Gregersen............................................. 1001 Board of Ed., Commack Union Free School Dist.; Margolin v.... 1034 Board of Estimate of New York City v. Morris......................... 986 Board of Mgmt., Am. Cast Iron Pipe Co.; Bd. of Operatives v..... 1010 Board of Operatives, Am. Cast Iron Pipe Co. v. Bd. of Mgmt... 1010 Board of Trustees, Leland Stanford Jr. U.; Volt Info. Sciences v. '.. 976 Board of Trustees of Univ, of Ark. v. Legrand....................... 1034 Boeing Co.; Machinists v....................................... 1014 Boerenveen v. United States.......................................... 960 Boersma v. Karnes ................................................. 986 Boggs v. Bair........................................................ 993 Boles v. Ellis................................................. 1001 Bollinger; Commissioner v. .......................................... 340 Bornhardt v. Maryland................................................ 950 Booker v. Dugger.................................................... 1015 Booker v. Mississippi................................................ 982 X TABLE OF CASES REPORTED Page Boos v. Barry................................................. 312 Borgia; Damascus v........................................... 1015 Boring v. Kozakiewicz......................................... 991 Borough. See name of borough. Boscio v. United States ...................................... 930 Boutwell; Pritchett v........................................ 1012 Bowen v. Adams House Health Care............................. 1018 Bowen; Bethesda Hospital Assn. v............................. 399 Bowen v. Galbreath........................................... • 74 Bowen v. Georgetown Univ. Hospital......................... 903 Bowen; Kemp v................................................. 970 Bowen; Kitchens v............................................. 934 Bowen v. Kizer................................................ 386 Bowen; Laurenco v.............................................. 1014 Bowen; North Broward Hospital Dist. v......................... 1018 Bowen; Ray v. ............................................... 1011 Bowen; Reddington v........................................... 905 Bowen v. Tallahassee Memorial Regional Medical Center........ 1020 Bowen v. United States........................................ 991 Bowen; University Hospital v................................. 1018 Bowen; University of Cincinnati v. .................. 1018 Bowen; Wisconsin Dept, of Health and Social Services v....... 1017 Boyle v. United Technologies Corp......................... 931,974 Boyles; Moody v.............................................. 1012 Braan v. District of Columbia Public Defender Service........ 1013 Bradberry v. United States................................... 1013 Bradford & Co. v. Kirkpatrick................................... 959 Brailey v. Autothority, Inc................................ 1010 Branch v. Federal Communications Comm’n......................... 959 Branch v. Utah............................................... 1036 Branson v. California........................................ 1018 Braverman v. United States.................................... 963 Bravo v. California........................................... 904 Breault; Forastiere v.......................................... 906 Brecheen v. Oklahoma.......................................... 909 Brecheisen v. Mondragon.................................... 1011 Breck v. Ulmer............................................ 1023 Breier v. United States ........................................ 960 Brennan v. Mount Dora........................................ 1029 Brewer v. California............................................ 967 Brewster; March v........................................... 1023 Brice v. United States.......................................... 991 Brickhouse v. Long.............................................. 967 Brieck; Harbison-Walker Refractories v.......................... 958 TABLE OF CASES REPORTED xi Page Brigham; Smith v............................................... 980 Bright v. Shimoda.............................................. 970 Briscoe, In re................................................. 953 Broce; United States v. ....................................... 903 Brooks v. Alabama............................................. 1009 Brown, In re................................................... 972 Brown v. Alabama............................................... 961 Brown v. Brown & Root U. S. A. Inc............................ 1017 Brown v. California............................................ 907 Brown v. Diaz............................................... 1037 Brown v. United States..................................... 908,978 Brown Co. v. National Labor Relations Bd...................... 1039 Browne v. United States........................................ 991 Browning v. Chevron U. S. A. Inc............................... 963 Brown & Root U. S. A. Inc.; Brown v. ......................... 1017 Brown & Williamson Tobacco Corp.; CBS Inc. v. ................. 993 Broyles; Director, Office of Workers’ Compensation Programs v. 987,1033 Bruch; Firestone Tire & Rubber Co. v. ......................... 986 Brunet; Columbus v. . : .................. 1034 Brusgulis v. Justices of Superior Court of Mass................ 936 Bryant v. Marsh................................................. 989 Buchanan v. Stanships, Inc....................................... 265 Budinich v. Becton Dickinson & Co................................ 956 Bullard v. Northcutt............................................. 972 Bullock; Texas Monthly, Inc. v................................... 958 Bumgarner; Thacker v.......................................... 1011 Burford; Cofield v............................................... 990 Burlington Northern Inc.; Williams v. . ....................... 991 Burlington Northern Joint Protective Bd. v. Burlington N. R. Co.. 935 Burlington N. R. Co.; Burlington Northern Joint Protective Bd. v. 935 Burr v. New York............................................... 989 Burrell v. Iowa................................................ 937 Burton v. Ohio State Adult Parole Authority.................... 964 Burnii; Arthur Young & Co. v........ t......................... 961 Bush v. Petsock............................................... 1036 Business Electronics Corp. v. Sharp Electronics Corp........... 717 Butler; Felde v. .............................................. 945 Butler; Jones v. ............................................. 972 Butler; Lowenfield v...................................... 995,1014 Butler; Monroe v.............................................. 1024 Butler; Wilson v. .......................................... 1015 Byrd v. Ohio................................................... 972 C. v. Iowa................................................... 1008 Cabana; Grays v................................................. 1023 XII TABLE OF CASES REPORTED Page Cagle; Lonsdale v. . . 989 Calbas v. United States.............................................. 937 Calicchio v. United States........................................... 978 California; Branson v.............................................. 1018 California; Bravo v. . . . 904 California; Brewer v................................................. 967 California; Brown v. ............................................... 907 California; Elliott v.............................................. 1012 California; Flores v................................................ 967 California; Ghent v................................................. 929 California; James D. v.............................................. 959 California; Leavelle v.............................................. 983 California; Mohiuddin v............................................. 950 California; Santistevan v........................................... 989 California; Tinsley v............................................... 964 California v. United States ....................................... 1020 California; Wallmuller v........................................... 1036 California; Williams v.............................................. 937 Calle-Cardenas v. United States.................................... 1024 Callowhill; Allen-Sherman-Hoff Co. v. ............................... 962 Calo v. McMackin..................................................... 979 Camacho; Honda Motor Co. v. ........................................ 901 Camden County Bd. of Taxation; Cherry Hill v. ...................... 936 Campbell County Dist. Court; Hollis v. ............................. 916 Campos v. LeFevre................................................... 994 Cansler v. Grove Mfg. Co.......................................... 962 Canteen Corp.; Szabo Food Service, Inc. v........................... 901 Canton v. Harris.................................................... 933 Cargill, Inc. v. Charter International Oil Co...................... 1014 Carlin v. United States............................................. 965 Carlin Communications, Inc. v. Mountain States Tel. & Tel. Co.... 1029 Carlson; Lyons v................................................... 1010 Carlucci v. Doe................................................ 904,1003 Carlucci; Howard v................................................. 1009 Carpenter; Missouri v............................................... 992 Carroll; Drew v.................................................. 1023 Carrollton Branch of NAACP; Duncan v................................ 936 Carter v. Lynaugh................................................. 938 Carter; Modjeski & Masters v....................................... 1031 Cartier, Inc.; Kmart Corp. v. .................... 176,932,956,1003,1019 Cartwright; Maynard v. :............................................ 974 Carver; Rogers v. .................................................. 937 Casper; Grant v..................................................... 940 Cassell v. Charles................................................ 965 TABLE OF CASES REPORTED xni Page Cassell v. Mount Joy Mennonite Church........................... 965 Castaneda; Holt v............................................... 979 Castaneda v. Immigration and Naturalization Service............. 906 Castro v. Oklahoma.............................................. 971 Cataldo v. United States........................................ 1022 Catalytic, Inc.; Operating Engineers v. ........................ 1020 Catlett v. Missouri Highway and Transportation Comm’n......... 1021 Catlett; Missouri Highway and Transportation Comm’n v. ........ 1021 Cazares v. Refugia Sandoval..................................... 908 CBS Inc. v. Brown & Williamson Tobacco Corp..................... 993 CBS Records, Inc.; Trapani v. .................................. 944 Cedar v. United States.......................................... 992 Cessna Aircraft Co.; Ebaugh v................................... 905 Chan v. Korean Air Lines, Ltd................................... 986 Charles; Cassell v.............................................. 965 Charter International Oil Co.; Cargill, Inc. v................. 1014 Checker Motors Corp. v. Production Workers..................... 1009 Cherokee Electric Cooperative; Steelworkers v. ................ 1038 Cherry Hill v. Camden County Bd. of Taxation.................... 936 Chevron U. S. A. Inc.; Browning v. ........................... 963 Cheyenne; Rogers v............................................. 1017 Chicago; Baja Contractors, Inc. v............................... 993 Chicago; Hutter Northern Trust v.............................. 936 Chicago Bd. of Ed.; Samayoa v................................... 951 Chicago & N. W. Transp. Co. v. Maintenance of Way Employes... 988 Chicago Title Ins. Co.; Arizona v............................. 909 Chipps v. Department of Ed...................................... 990 Christensen v. United States................................... 1035 Christensen v. Utah State Tax Comm’n........................... 1030 Chrysler Credit Corp.; Loeschnig v............................. 1035 Chu;Weilu ....................................................... 901 Chumbley; Rockland Industries, Inc. v............................ 961 Cinelli; Cutillo v. ........................................... 1037 Circuit Judge of Fla., Orange Cty.; Miami Herald Pub. Co. v... 960,1003 Citizens for Representative Government; H-CHH Associates v. ... 971 Citizens for Representative Government; Plaza Pasadena v........ 971 City. See name of city. City National Bank of Miami; General Coffee Corp. v............ 1007 Clanton v. Muncy................................................ 1000 Clark; Commissioner v........................................... 933 Clark v. Dugger................................................. 982 Clark v. United States.......................................... 1024 Clark-Cowlitz Joint Operating Agency v. FERC.................... 913 Clausell v. Hobart Corp......................................... 1000 XIV TABLE OF CASES REPORTED Page Clayton v. Pennsylvania......................................... 929 Clearwater; Don’s Porta Signs, Inc. v......................... 981 Clinton, In re............................................... 1019 Clissuras v. New York City................................... 1015 Clodfelter v. United States..................................... 978 CNA Financial Corp. v. McLaughlin............................... 977 Cochran v. Taylor............................................ 1009 Cody v. Hillard................................................ 906 Cofield v. Burford ............................................. 990 Cofield v. Hughes............................................. 990 Cohen v. Georgia.............................................. 982 Coit Independence Joint Venture v. FSLIC........................ 933 Colanese v. New Prairie Classroom Teachers Assn.............. 1006 Cole v. United States........................................... 989 Colon v. United States.......................................... 980 Colony Square Co. v. Prudential Ins. Co....................... 977 Colorado; Kansas v.............................................. 931 Colorado; Romero v.............................................. 990 Colorado Secretary of State v. Grant......................... 1003 Columbia Univ.; Rademaker v..................................... 972 Columbus v. Brunet........................................... 1034 Commissioner; Arkansas Best Corp. v. ........................... 212 Commissioner v. Bollinger....................................... 340 Commissioner v. Clark........................................... 933 Commissioner; Crim v......................................... 1016 Commissioner; Frink v. ...................................... 973 Commissioner; George v........................................ 973 Commissioner; Guy F. Atkinson Co. of Cal. v................... 970 Commissioner; Hernandez v.................................... 1005 Commissioner; Odle v. ....................................... 1010 Commissioner; Peeples v..................................... 936 Commissioner; Purcell v....................................... 987 Commissioner of Correction of New York; Ronson v.............. 972 Commissioner of Finance of New York City; Adirondack Chair Co. v. 949 Commissioner of Highways of Ky.; Wheeler v.................... 944 Commissioner of Internal Revenue. See Commissioner. Commissioner of Revenue of Tenn.; Bean Dredging Corp. v...... 1034 Committee on Judiciary of House of Representatives; Hastings v. . 1001 Commodity Futures Trading Comm’n; Rosee v................... 971 Commonwealth. See name of Commonwealth. Compagnie Maritime des Chargeurs Reunis, S. A.; Morris v..... 1022 Conard v. United States....................................... 989 Congregation Sons of Israel v. Shaftan ....................... 905 Conley v. Conley’s Estate.................................... 1012 TABLE OF CASES REPORTED xv Page Conley’s Estate; Conley v...................................... 1012 Connecticut; Evans v............................................ 988 Connecticut v. Federal Communications Comm’n.................... 959 Connecticut; Laracuente v. .................................... 1036 Connecticut; McDonough v. .................................... 906 Connecticut Dept, of Liquor Control; Dydyn v.................... 977 Conner; Cordeiro v............................................. 1013 Consolidated Rail Corp.; G. & T. Terminal Packing Co. v....... 988 Consulate General of Nigeria v. Joseph.......................... 905 Consumers Power Co.; Walker v. ................................. 930 Continental Group, Inc. v. McLendon............................. 959 Continental Ill. National Bank & Trust Co. of Chicago; Spiegel v. . 1009 Cook; Hayes v................................................... 988 Cook v. Lockhart................................................ 908 Cooper, In re................................................... 951 Cooper the Proprietorship, In re................................ 957 COPIAT; 47th Street Photo, Inc. v............. 176,932,956,1003,1019 COPIAT; United States v....................... 176,932,956,1003,1019 Corace v. United States........................................ 1015 Cordeiro v. Conner............................................. 1013 Cordoba v. New Mexico........................................... 939 Corley, In re................................................... 975 Corrections Commissioner. See name of commissioner. Cosmetic, Toiletry & Fragrance Assn. v. Public Citizen ........ 1006 Coston v. Plitt Theatres, Inc.................................. 1007 Cotton Petroleum Corp. v. New Mexico........................... 1005 County. See name of county. County Comm’n of Webster Cty.; Allegheny Pittsburgh Coal Co. v. 976 County Comm’n of Webster Cty.; East Ky. Energy Corp. v........ 976 Court of Appeals. See U. S. Court of Appeals. Cozad v. Illinois............................................... 964 C & P Telephone Co. of Md.; Mehar v............................ 1016 Crawford v. Foltz............................................... 979 Crawford v. Jabe................................................ 1013 Crespo v. United States......................................... 1007 Crest; McCoy v.......................................:.......... 978 Crim v. Commissioner............................................ 1016 Crocker v. Federal Deposit Ins. Corp............................ 905 Croom v. United States.......................................... 968 Crowley v. New Hampshire Personnel Comm’n...................... 1022 Crown Cork & Seal Co. v. McNasby................................ 936 Cruz v. Illinois .............................................. 1035 Cuevas v. Texas................................................. 1015 Culbert v. Young................................................ 990 Culbertson; Trove v............................................. 1023 XVI TABLE OF CASES REPORTED Page Culmer, In re................................................. 1002 Cunnagin; Whittington v........................................ 979 Cuomo; Schwartz v............................................. 1009 Curry v. United States....................................... 960 Cutillo v. Cinelli............................................ 1037 Cuyamaca Meats; San Diego & Imperial Ctys. Butchers’ Pens. Tr. v. 1008 D. v. California.............................................. 959 D.; Michael H. v............................................... 903 Dale v. Janklow................................................ 1014 Dallas; Dent v. ............................................... 977 Dallas; FW/PBS, Inc. v......................................... 1042 Dallas; Paris Adult Bookstore II v............................ 1042 D’Amario v. Rhode Island....................................... 966 Damascus v. Borgia............................................. 1015 Danfield; Owens-Illinois, Inc. v............................... 1029 Daniels v. Secretary of Health and Human Services.............. 944 Danielson v. Illinois...........................i.............. 972 Darden v. Dugger........................................... 943,949 Davis v. Kemp.................................................. 929 Davis; Mississippi v. ......................................... 913 Davis v. Wisconsin............................................ 1010 Dayton Power & Light Co. v. Ohio Civil Rights Comm’n......... 977 Dean v. Georgia Dept, of Transportation........................ 994 Deasy v. Hill.................................................. 977 DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Coun.. 568 Decatur; Robinson v............................................. 908 Dedman v. Hawaii Bd. of Land and Natural Resources............ 1020 Deering v. Georgia ............................................. 965 Deering v. Meese................................................ 965 DeFelice; Abraham v............................................. 937 Delaware Trust Co.; Slater v................................... 994 DeLong v. Virginia.............................................. 929 Delta Air Lines, Inc. v. Port Authority of N. Y. & N. J....... 1006 Demong; Gorod v. ............................................. 1037 Dent v. Dallas ..'............................................. 977 Department of Agriculture; Engelhartson v...................... 990 Department of Army; Lyons v.................................... 972 Department of Attorney General of Mich.; Kalvans v. ............ 1035 Department of Ed.; Chipps v.................................... 990 Department of Housing Preserv. & Dev. of N. Y. C.; Replan Dev. v. 950 Department of Justice v. Reporters Committee for Freedom of Press 1005 Department of Justice; Wade v.................................. 963 Department of Justice; White v............................... 944 TABLE OF CASES REPORTED xvn Page Department of Navy; Adams v.................................... 1023 Department of Navy; Sztan v. .................................. 1035 Department of Revenue of Iowa; Winnebago Tribe of Neb. v...... 1021 Department of State; Goldberg v. ............................... 904 DeShaney v. Winnebago County Dept, of Social Services......... 958 DeVeaux v. Scully................................................ 980 Devon Bank v. Merrill Lynch, Pierce, Fenner & Smith, Inc...... 1008 Diaz; Brown v................................................ 1037 Diggs v. Owens................................................... 979 Director, Office of Workers’ Compensation Programs v. Broyles 987,1033 Director, Office of Workers’ Compensation Programs; Humphries v. 1028 Director of penal or correctional institution. See name or title of director. Director of Revenue of Mo.; Shell Oil Co. v..................... 983 Disabled in Action of Pa.; Philadelphia v....................... 989 District Court. See also U. S. District Court. District Court, Douglas County; Hollan v........................ 977 District Judge. See U. S. District Judge. District of Columbia; E. R. E. v................................ 937 District of Columbia; Slaughter v............................... 964 District of Columbia Public Defender Service; Braan v.......... 1013 Dix; Kemp v................................................ 940 Doan; Morris v. ............................................... 1036 Doe; Carlucci v. .......................................... 904,1003 Doe; Webster v.............................................. 902 Donaldson; Ferguson v. ........................................ 1039 Donegan v. McWherter............................................ 908 Donivan; McKinsey v............................................ 1035 Don’s Porta Signs, Inc. v. Clearwater...................... 981 Dooley v. Duckworth............................................. 967 Dority v. Oregon............................................... 1034 Dorsey, In re............................................... i 974 Douctel/Olivetti Corp. v. Finkel................................ 959 Douctel/Olivetti Corp.; Finkel w ............................... 959 Dow Chemical Co.; Krupkin v.................................... 956 Dozoryst, In re................................................ 1002 Draper v. Murray................................................. 965 Dresser Industries, Inc. v. Fahy............................... 1022 Drew v. Carroll ............................................. 1023 Dryden v. Mustain...................'........................... 964 Dubish v. Kansas............................................... 1000 Duck; Munn v. .............................................. 1006 Duckworth; Dooley v............................................. 967 Duckworth; Felders v. .......................................... 966 XVIII TABLE OF CASES REPORTED Page Duff & Phelps, Inc. v. Jordan.............................. 901 Duffy v. Arcadia............................................... 901 Dugger v. Adams............................................ 933 Dugger; Booker v.......................................... 1015 Dugger; Clark v. .............................................. 982 Dugger; Darden v......................................... 943,949 Dugger v. Elledge......................................... 1014 Dugger v. Johnson.......................................... 945 Dugger; Leon v............................................ 1023 Dugger; Losey v. ............................................. 1036 Dugger; Love v. i ............. 979 Dugger v. Marrero.......................................... 970 Dugger; Marrero v.................................. .......... 965 Dugger v. Thompson......................................... 960 Duncan v. Carrollton Branch of NAACP........................... 936 Duquesne Light Co. v. Barasch............................. 933,1003 Durand-Wayland, Inc. v. Pennwalt Corp..................... 1009 Durand-Wayland, Inc.; Pennwalt Corp. v..................... 961 Durham; First Family Mortgage Corp, of Fla. v. ................ 957 Dydyn v. Connecticut Dept, of Liquor Control............... 977 E. v. District of Columbia................................ 937 Eads; Smith v. .............................................. 1022 Eakins v. Foltz.......................................... 938,1030 Easter Seal Society of La. v. Playboy Enterprises.............. 981 East Ky. Energy Corp. v. County Comm’n of Webster County.... 976 Ebaugh v. Cessna Aircraft Co................................... 905 Economou v. Securities and Exchange Comm’n................ 938,1004 Edmiston; Alevras v............................................ 990 Edward DeBartolo Corp. v. Fla. Gulf Bldg. & Constr. Trades Coun. 568 Edwards v. Fisher.............................................. 950 Edwards; Times-Picayune Publishing Corp. v...................... 934 E. F. Hutton & Co.; Platsis v.................................. 962 Eggert; Veale v................................................. 978 Eisen v. Sackman-Gilliland Corp............................... 1001 Eldridge; Rolleston v........................................... 963 Ellard; Alabama Bd. of Pardons and Paroles v. .................. 981 Elledge; Dugger v............................................. 1014 Elliott v. California......................................... 1012 Elliott v. Myers.............................................. 1012 Ellis; Boles v............:................................... 1001 Ellis v. West............................................... 1022 El Paso Natural Gas Co.; Fina Oil & Chemical Co. v......... 930,987 Embrey v. United States......................................... 994 Employment Div., Dept, of Human Resources of Ore. v. Black .... 660 TABLE OF CASES REPORTED XIX Page Employment Div., Dept, of Human Resources of Ore. v. Smith.... 660 Engelhartson v. Department of Agriculture...................... 990 Engle v. Florida................................................. 924 Ennis v. Hoke................................................. 1012 Enrico, In re.................................................... 951 Equal Employment Opportunity Comm’n; Pennsylvania v. ........ 935 E. R. E. v. District of Columbia................................. 937 Erickson v. Alltech Associates, Inc.......................... 943 Esch v. United States...................................... 908,991 E & S Design & Development, Ltd. v. Montgomery................ 1008 Espinosa v. United States..................................... 968 Esposito v. New York Times Co.................................. 977 Estate. See name of estate. Estelle; Allen v.............................................. 1023 Estrada v. United States......................................... 980 Estus v. Azzarelli............................................ 1013 E & T Realty v. Strickland....................................... 961 Eu v. San Francisco County Democratic Central Committee....... 1004 Evans v. Connecticut........................................ 988 Evans v. U. S. Court of Appeals.................................984 Evatt; Green v................................................ 1013 Exxon Co. v. Banque de Paris et des Pays-Bas.................. 1020 Exxon Co.; Mastelotto v....................................... 1021 Exxon Corp., In re............................................. 975 Fahy; Dresser Industries, Inc. v.............................. 1022 Falwell; Hustler Magazine, Inc. v............................... 46 Farah v. Florida............................................... 976 Farmers Union Central Exchange, Inc.; Koch Refining Co. v..... 906 Farrington; South Central Enterprises, Inc. v. .................. 1021 Farwest Steel Corp. v. Barge CERES............................ 1034 Farwest Steel Corp. v. Barge SEA-SPAN 241..................... 1034 Father Flanagan’s Boys’ Home; Beauford v....................... 938 Fausto; United States v. ...................................... 972 Fayette; Manter v.......................................... 937,984 Fazelihokmabad; Immigration and Naturalization Service v...... 930 Federal Communications Comm’n; Branch v. ...................... 959 Federal Communications Comm’n; Connecticut v................... 959 Federal Deposit Ins. Corp.; Air Fla. System, Inc. v. ............. 987 Federal Deposit Ins. Corp.; Crocker v. ......................... 905 Federal Deposit Ins. Corp.; Gonda v. ........................... 1017 Federal Deposit Ins. Corp.; Lipsey v. .......................... 979 FERC; Clark-Cowlitz Joint Operating Agency v................... 913 FERC; Interstate Natural Gas Assn. v.......................... 1006 FERC; Southern Cal. Gas Co. v. . 1006 XX TABLE OF CASES REPORTED Page FERC; Texas Eastern Transmission Corp. v..................... 1006 FERC; Wilcox v................................................... 1006 Federal Home Loan Bank Bd.; Nasser v. ............................ 970 Federal Home Loan Bank Bd.; Woods v............................... 959 Federal Labor Relations Authority v. Aberdeen Proving Ground .. 409 FSLIC; Coit Independence Joint Venture v.......................... 933 Federal Trade Comm’n; Monahan v................................... 987 Feiock; Hicks v................................................... 624 Feld; Airzona v................................................. 977 Felde v. Butler................................................... 945 Felder; Latshaw v. ...................................:.......... 1015 Felders v. Duckworth.............................................. 966 Feldman, In re................................................... 952 Ferguson v. Donaldson ........................................... 1039 Ferris v. United States .......................................... 908 Fied v. Washington................................................ 938 Fields v. Harrison............................................... 1013 Fina Oil & Chemical Co. v. El Paso Natural Gas Co............. 930,987 Finestone v. United States....................................... 972 Finkel v. Douctel/Olivetti Corp................................... 959 Finkel; Douctel/Olivetti Corp. v. . . . 959 Firestone Tire & Rubber Go. v. Bruch.............................. 986 First American National Bank of Knoxville v. Taylor.............. 1001 First Family Mortgage Corp, of Fla.; Attorney General of N. J. v. 957 First Family Mortgage Corp, of Fla. v. Durham..................... 957 First Federal Savings & Loan Assn. v. Oklahoma Tax Comm’n.... 901 First National Bank of Live Oak; Lashley v....................... 1016 First Union National Bank of Fla. v. Florida Dept, of Revenue ... 949 Fisher; Edwards v................................................. 950 Fleisher v. Signal Hill............................ v........ 961 Flight Attendants; Trans World Airlines, Inc. v.......... 175,958,1003 Flores v. California.............................................. 967 Florida; Engle v.................................................. 924 Florida; Farah v........................................ .... 976 Florida; Hill v................................................... 993 Florida; Kerney v................................................ 1010 Florida; Kight v. ................................................ 929 Florida; Koon v............................................... 943 Florida v. Long.................................................. 1019 Florida; Roberts v. ............................................ 943 Florida; Smith v.................................................. 971 Florida; Williamson v............................................. 929 Florida Dept, of Revenue; First Union National Bank of Fla. v. ... 949 Florida Gulf Coast Bldg. & Constr. Trades Coun.; DeBartolo Corp. v. 568 TABLE OF CASES REPORTED XXI Page Florida Power & Light Co. v. Westinghouse Electric Corp......... 1021 Flota Mercante Grancolombiana, S. A.; O.N.E. Shipping, Ltd. v... 986 Flume, In re................................................... 952 Foltz; Beam v. .............................................. 980 Foltz v. Blackbum.............................................. 970 Foltz; Crawford v.............................................. 979 Foltz; Eakins v. ......................................... 938,1030 Forastiere v. Breault.......................................... 906 Ford v. Georgia........................................... 943,1030 Ford; Lay v. .................................................. 980 Ford Motor Credit Co.; Terpstra v. ............................ 935 Foreign Credit Ins. Assn. v. Nu-Air Mfg. Co.................... 976 Foret v. Grand Isle......................................... 937 Formetrics, Inc.; Sign, Pictorial & Display Industry Pens. Tr. Fd. v. 904 Fort Myers; Howard v.......................................... 1004 Fort Wayne Books, Inc. v. Indiana.............................. 933 48th Street Steakhouse, Inc.; Rockefeller Group, Inc. v...... 1035 47th Street Photo, Inc. v. COPIAT............ 176,932,956,1003,1019 Franklin v. Office of Personnel Management....:................ 984 Franklin Mint Co.; McMahon v................................... 936 Frazier v. Railroad Retirement Bd.............................. 944 Frazier v. Seabold............................................ 1036 Freeman v. Rideout............................................. 982 Friedman, In re................................................ 951 Frink v. Commissioner.......................................... 973 Froehlich; Angel v. ........................................... 984 Fujikawa; Gushiken v. ...................................... 956 Fulcomer; Little v.967 Fulcomer; Moore v. 1037 FW/PBS, Inc. v. Dallas...................................... 1042 Gagliardi v. Ziegler......................................... 987 Gains v. Scully........................................... .. 1013 Galbreath; Bowen v. ............................................ 74 Gallagher v. United States..................................... 968 Gallatin County; Ronek v........................................962 Galloway v. Josey............................................. 1006 Garcia; Miera v................................................ 959 Garcia-Nieto v. United States................................... 968 Gardebring v. Jenkins....................... J.......... 415 Garraghty; Scott v. ............................................ 978 Gates v. San Quentin Warden..................................... 964 Gendron v. Pan American World Airways, Inc. .. '.............. 1008 General Accounting Office; Ramey v. ........................... 960 General Coffee Corp. v. City National Bank of Miami........... 1007 XXII TABLE OF CASES REPORTED Page General Motors Corp. v. Bennett............................... 941 Gentile v. Montefiore Hospital, Inc........................... 979 George v. Commissioner........................................ 973 Georgetown Univ. Hospital; Bowen v. .......................... 903 George V. v. State Bar of Cal................................ 1035 Georgia; Aiderman v. .................................... 943,1030 Georgia; Cohen v.............................................. 982 Georgia; Deering v............................................ 965 Georgia; Ford v....................................... 943,1030 Georgia; Harrison v. :........................................ 982 Georgia; Mungin v............................................. 908 Georgia; Page v............................................... 907 Georgia Dept, of Transportation; Dean v. ..................... 994 Gerald D.; Michael H. v. . ..i.................................. 903 German-American State Bank; Hunziker v....................... 1011 German Federal Government; Bespalchenko v. ............ 979,1042 Ger-Shep, Inc. v. United States .............................. 961 Ghent v. California........................... ■; i...... 929 Giles v. Wing.........:...................................... 968 Giraldo v. United States.................................... 969 Globe Newspaper Co. v. King................................... 940 Globe Newspaper Co.; King v................................... 962 Goad v. United States........................................ 906 Goeres; Rosberg v. .......................................... 1011 Goldberg v. Department of State............................... 904 Goldberg; Hilbun v............................................ 962 Golden Cable Co. v. B. E. & K. Communications, Inc............ 962 Goldman, In re........................................... 984,1002 Goldsborough v. United States................................ 1013 Goldstein, In re............................................. 1015 Gonda v. Federal Deposit Ins. Corp..........................., 1017 Gonzales v. Leal............................................. 1007 Gonzales v. Secretary of Air Force............................ 969 Gonzalez v. United States............................... 991,1024 Gordon v. Gordon............................................. 1034 Gorod v. Demong..............:............................... 1037 Gould; Wrenn v............................................... 1015 Governor of N. Y.; Schwartz v................................ 1009 Governor of S. D.; Dale v.................................... 1014 Gowdy v. United States........................................ 934 Grand Isle; Foret v........................................... 937 Grand Prairie Independent School Dist.; Stout v............... 907 Grano; Barry v. .............................................. 971 Grant v. Casper.............................................. 940 TABLE OF CASES REPORTED XXIII Page Grant; Hughes v........,....................................... 967 Grant; Meyer v. ............................................... 1003 Gratton v. LeCureux............................................ 967 Gravatt v. United States....................................... 980 Gravatt v. United States District Court....................... 1010 Grays v. Cabana................................................ 1023 Great Atlantic & Pacific Tea Co. v. Moldovan................... 904 Great Atlantic & Pacific Tea Co.; Moldovan v................... 904 Greeley; Poudre Valley Rural Electric Assn., Inc. v....... 949 Green v. Evatt................................................ 1013 Green; Lowe v.................................................. 1012 Green v. United States......................................... 969 Greene v. Mirabel ............................................ 983 Gregersen; Blume v............................................. 1001 Gregory Lumber Co. v. United States......................... 1015 Greisen v. United States....................................... 1006 Gridley; Miami Herald Publishing Co. v.................... 960,1003 Griffin v. United States....................................... 909 Grigorov v. New York........................................... 1012 Grove Mfg. Co.; Cansler v...................................... 962 G. & T. Terminal Packing Co. v. Consolidated Rail Corp........ 988 Gubler; Roberts v.............................................. 1009 Guffey v. Kirksville......................................... 1035 Guider v. Smith................................................ 906 Guinn v. Guinn................................................. 975 Guinn v. Maass................................................ 1011 Gulfstream Aerospace Corp. v. Mayacamas Corp................... 271 Gushiken v. Fujikawa........................................... 956 Gussow, In re.................................................. 1019 Guste v. United States........................................ 1033 Guy F. Atkinson Co. of Cal. v. Commissioner.................... 970 H. v. Gerald D.............................................. 903 Haas v. Wilcox................................................. 938 Hagen v. South Dakota.......................................... 930 Haig v. Bissonette............................................. 264 Hall; Santa Barbara v. ........................................ 940 Hallingstad v. Harvey.......................................... 908 Hamilton v. Texas............................................. 1042 Hannivig v. Reagan............................................. 990 Hanson v. Trinidad Corp....................................... 1009 Harbison-Walker Refractories v. Brieck......................... 958 Hardin v. United States........................................ 909 Harkrider v. Lafayette Bank & Trust Co......................... 988 Harris, In re.................:............................... 1033 XXIV TABLE OF CASES REPORTED Page Harris; Canton v............................................... 933 Harris v. Ivey................................................ 1011 Harris v. Reed............................................. 934,974 Harrison; Fields v............................................ 1013 Harrison v. Georgia............................................ 982 Harry v. United States......................................... 938 Harvey; Hallingstad v................................. ....... 908 Hastings v. Committee on Judiciary of House of Representatives .. 1001 Hastings v. Judicial Conference of United States.............. 1014 Hawaii; Bicoy v. ............................................ 962 Hawaiian Telephone Co.; Public Utilities Comm’n of Haw. v..... 956 Hawaii Bd. of Land and Natural Resources; Dedman v. .......... 1020 Hayes v. Cook.................................................. 988 Hays v. Alabama................................................ 929 H-CHH Associates v. Citizens for Representative Govt........... 971 H-CHH Associates v. Pasadena Citizens for Representative Govt.. 971 Health Services Acquisition Corp.; Liljeberg v................. 974 Heights Hospital; Peralta v. ................................... 80 Heights Medical Center, Inc.; Peralta v........................ 80 Helmus; Johnson v............................................. 1007 Henderson v. Internal Revenue Service.......................... 967 Henry Vogt Machine Co.; Taylor v............................... 972 Henslee v. Sykes.......................................... 974,1036 Herceg v. Hustler Magazine, Inc............................... 959 Hernandez v. Commissioner..................................... 1005 Hernandez v. United States ................................... 1013 Hernandez-Beltran v. United States............................ 1014 Hicks v. Feiock................................................ 624 Hilbun v. Goldberg............................................. 962 Hill; Deasy v. ................................................ 977 Hill v. Florida................................................ 993 Hill v. Lynaugh ............................................... 980 Hillard; Cody v................................................ 906 H. J. Inc. v. Northwestern Bell Telephone Co................... 958 Hobart Corp.; Clausell v...................................... 1000 Hochman v. Rafferty........................................... 1022 Hodel; Afifi v................................................. 966 Hodges v. United States....................................... 1031 Hodosh; Block Drug Co. v. .................................... 1007 Hoke; Ennis v................................................. 1012 Holland v. District Court, Douglas County...................... 977 Holley v. United States........................................ 960 Hollis v. Campbell County Dist. Court.......................... 916 Holmes v. West Virginia....................................... 905 TABLE OF CASES REPORTED xxv Page Holt v. Castaneda .............................................. 979 Honda Motor Co. v. Camacho...................................... 901 Honeywell, Inc. v. Luzadder.................................... 1035 Honig v. Bennett ............................................... 988 Hopkins, In re................................................. 1002 Hopkins v. Office of Personnel Management...................... 1023 Hopkins; Price Waterhouse v................................... 933 Home v. United States.......................................... 1020 Hornsby v. Alabama.............................................. 961 Houston; Blood Bank at Wadley v. .............................. 1008 Houston; J. K. & Susie L. Wadley Research Inst. & Blood Bank v. 1008 Houston v. U. S. Postal Service............................... 1006 Howard v. Carlucci............................................. 1009 Howard v. Fort Myers........................................... 1004 Howard v. Viacom International ................................. 902 Howes v. United States......................................... 1015 Huckabay; Strong v............................................. 1011 Huddleston v. United States....................................... 681 Hudson v. Jago.................................................... 963 Hughes; Cofield v................................................ 990 Hughes v. Grant................................................... 967 Hughes; Ohse v.................................................. 902 Hughes v. United Van Lines, Inc................................... 913 Humphries v. Director, Office of Workers’ Compensation Programs 1028 Hunter v. U. S. District Court.................................. 965 Hunziker v. German-American State Bank......................... 1011 Hurley v. West American Ins. Co. of Ohio Casualty Group ....... 1001 Hussmann v. Zimmerman........................................... 967 Hust, In re..................................................... 985 Hustler Magazine, Inc. v. Falwell................................ 46 Hustler Magazine, Inc.; Herceg v................................ 959 Hutchison; McSurely v........................................... 934 Hutter Northern Trust v. Chicago................................ 936 Hutton & Co.; Platsis v......................................... 962 Ibrahim v. United States....................................... 1024 Illinois; Bigham v............................................ 1011 Illinois; Cozad v............................................... 964 Illinois; Cruz v............................................... 1035 Illinois; Danielson v. ......................................... 972 Illinois; Lekas v............................................... 942 Illinois; Norton v.............................................. 902 Illinois; Shum v......................................... ..... 1015 Illinois; Taylor v.............................................. 983 Illinois v. White.............................................. 1006 Illinois Central Gulf R. Co. v. Mister......................... 1035 XXVI TABLE OF CASES REPORTED Page Illinois Dept, of Revenue v. Andras ............................. 960 Immigration and Naturalization Service v. Abudu................... 94 Immigration and Naturalization Service; Castaneda v.............. 906 Immigration and Naturalization Service v. Fazelihokmabad....... 930 Immigration and Naturalization Service; Usman v................. 1042 Indiana; Fort Wayne Books, Inc. v. .............................. 933 Indiana; Oglesby v.............................................. 1037 Indiana; Sappenfield v. . 933 In re. See name of party. Inscoe v. Acton Corp............................................. 977 Internal Revenue Service; Henderson v............................ 967 International. For labor union, see name of trade. International Bank of Miami, N. A.; Bennett v.................... 988 International Bank of Miami, N. A.; New England Ins. Co. v..... 989 Interstate Natural Gas Assn. v. Federal Energy Regulatory Comm’n 1006 Inupiat Community of Arctic Slope v. United States .............. 972 Iowa; A. C. v................................................... 1008 Iowa; Burrell v. ................................................ 937 Irving v. United States.......................................... 939 Isla Petroleum Corp.; Puerto Rico Dept, of Consumer Affairs v. .. 495 Ismaili v. United States......................................... 935 Ivey; Harris v.................................................. 1011 Jabe; Crawford v.1013 Jackson v. Morris.............................................. 1010 Jackson v. United States......................................... 969 Jago; Hudson v................................................... 963 James v. Alford................................................. 1036 James v. Lynaugh............................................. 966,978 James D. v. California........................................... 959 Jamison; St. Louis v............................................. 987 Janklow; Dale v................................................. 1014 J. C. Bradford & Co. v. Kirkpatrick.............................. 959 Jenkins; Gardebring v............................................ 415 Jerisha; Rial v. . 1013 Jester v. Ohio.................................................. 972 J. K. & Susie L. Wadley Research Inst. & Blood Bank v. Houston 1008 Jochim v. United States......................................... 1024 Johnson v. Armontrout........................................... 1015 Johnson; Arunga v................................................ 930 Johnson; Dugger v................................................ 945 Johnson v. Helmus............................................... 1007 Johnson v. McLaughlin............................................ 977 Johnson v. Mississippi....................................... 932,957 Johnson v. Tennessee............................................. 994 TABLE OF CASES REPORTED XXVII Page Johnson; Vinson v............................................ 1023 Jones v. Butler............................................... 972 Jones v. Jones.................................................. 907 Jones v. Morrisville............................................ 906 Jones v. Oitker................................................. 990 Jones v. Princeton Univ. ....................................... 906 Jones v. Ralston............................................. 1023 Jones v. United States.......................................... 968 Jones; Watkins v............................................. 1013 Jordan; Duff & Phelps, Inc. v. ................................. 901 Joseph; Consulate General of Nigeria v.......................... 905 Josey; Galloway v............................................ 1006 Juarbe Angueria v. Arias........................................ 960 Judge, Edmonson Circuit Ct., Edmonson Cty.; Hayes v........... 988 Judge, Fulton Superior Ct. of Ga.; Rolleston v................ 963 Judge, Lake Cty. Superior Ct., Juvenile Div.; Wislocki-Goin v..... 936 Judge, San Diego North Cty. Superior Ct.; Angel v............. 984 Judge, 211th Jud. Dist. Ct., Denton Cty.; Blood Bank at Wadley v. 1008 Judge, 211th Jud. Dist. Ct., Denton Cty.; Wadley Research Inst. v. 1008 Judicial Conference of United States; Hastings v............. 1014 Jurisich v. Louisiana Dept, of Wildlife & Fisheries.......... 1021 Justices of Superior Court of Mass.; Brusgulis v.............. 936 Kaestel v. Sargent............................................ 969 Kalk, In re................................................... 984 Kalvans v. Department of Attorney General of Mich............ 1035 Kamen v. Kemper Financial Services, Inc....................... 939 Kamen v. Nordberg............................................. 939 Kane v. United States........................................ 1035 Kansas v. Colorado............................................ 931 Kansas; Dubish v. ............................................ 1000 Kansas; Snyder v. . . 963 Kaplan; King v. , 1018 Kaplan v. United States......................................... 907 Kames; Boersma v.............................................. 986 Keehan, In re................................................. 973 Keeney; McCline v............................................. 964 Kelly v. Wilkinson........................................... 1034 Kemp; Amadeo v.................................................. 903 Kemp v. Bowen................................................... 970 Kemp; Davis v................................................... 929 Kemp v. Dix..................................................... 940 Kemper Financial Services, Inc.; Kamen v........................ 939 Kentucky; Stincer v............................................. 965 Kern, In re..................................................... 953 XXVIII TABLE OF CASES REPORTED Page Kemey v. Florida .............................................. 1010 Kertesz v. United States........................................ 968 Keys; Vermont Dept, of Taxes v................................. 1035 Khan v. United States ......................................... 1024 Kidd v. United States........................................... 966 Kight v. Florida................................................ 929 Kilgroe v. Arabian.............................................. 962 Kilpatrick v. United States................................. 932,956 King v. Globe Newspaper Co...................................... 962 King; Globe Newspaper Co. v..................................... 940 King v. Kaplan................................................. 1018 King v. Reliance Ins. Co........................................ 988 King v. United States..................................... 1007,1022 Kirk v. Michael Reese Hospital & Medical Center................. 905 Kirkpatrick; J. C. Bradford & Co. v. ........................... 959 Kirksville; Guffey v. ......................................... 1035 Kiser; Parker-Hannifin Corp. v.................................. 906 Kistner v. United States ....................................... 991 Kitchens v. Bowen............................................... 934 Kizer; Bowen v.................................................. 386 Klein Independent School Dist. v. Mattox....................... 1008 KLP, Inc. v. United States...................................... 961 K mart Corp. v. Cartier, Inc.................. 176,932,956,1003,1019 Koch Refining Co. v. Farmers Union Central Exchange, Inc...... 906 Konarski v. New York Medical College, Inc....................... 905 Konizeski v. Livermore Labs .................................... 905 Koon v. Florida................................................. 943 Koons Ford of Annapolis, Inc. v. National Labor Relations Bd.. 1021 Korean Air Lines, Ltd.; Chan v. ................................ 986 Kotsos, In re.................................................... 952 Kotyk v. Ward.................................................. 1037 Kozakiewicz; Boring v............................................ 991 Kronfeld; Trans World Airlines, Inc. v......................... 1007 Krupkin v. Dow Chemical Co...................................... 956 Kungys v. United States.......................................... 759 Labor Union. See name of trade. Lafayette Bank & Trust Co.; Harkrider v......................... 988 LaMaire v. United States........................................ 960 Landers v. National Railroad Passenger Corp................. 652,932 Lane; Shiflet v................................................. 965 Lane; Teague v.................................................. 933 Laracuente v. Connecticut...................................... 1036 Larry N. Cooper the Proprietorship, In re....................... 957 La Rue v. McCarthy............................................. 1012 TABLE OF CASES REPORTED XXIX Page Lashley v. First National Bank of Live Oak..................... 1016 Lasteed v. United States....................................... 1022 Latshaw v. Felder.............................................. 1015 Laurenco v. Bowen.............................................. 1014 Lawrence v. United States Army Tank-Automotive Command .... 1022 Lawson v. North Carolina....................................... 1016 Lawyers Professional Responsibility Bd.; Williams v............. 950 Lay v. Ford..................................................... 980 Leach; Birdsell v............................................... 938 Leady v. United States......................................... 978 Leal; Gonzales v. ............................................. 1007 Leavelie v. California.......................................... 983 LeCureux; Gratton v............................................. 967 LeCureux; Samel v............................................... 969 Lederle Laboratories v. Toner................................... 942 Leeke; Loftis v................................................. 966 Leeke; Perry v. ........................................... 976,1003 LeFevre; Campos v............................................... 994 Leggins v. Lockhart............................................. 907 LeGrand; Board of Trustees of Univ, of Ark. v.................. 1034 Legrone v. Texas................................................ 937 Lekas v. Illinois............................................... 942 Lembeck v. Ashcroft............................................. 966 Leon v. Dugger................................................. 1023 Letter Carriers; U. S. Postal Service v.. 680 Levinson; Basic Inc. v.......................................... 224 Lewis, In re................................................... 1002 Lewis v. United States..................................... 934,1024 Liljeberg v. Health Services Acquisition Corp................... 974 Lipsey v. Federal Deposit Ins. Corp............................. 979 Lisak v. Mercantile National Bank of Ind....................... 1007 Little v. Fulcomer.............................................. 967 Little Rock v. Williams......................................... 931 Livermore Labs; Konizeski v. . 905 Local. For labor union, see name of trade. Lockhart; Cook v. ............................................ 908 Lockhart; Leggins v......................................... 907 Lockhart v. Nelson......................................... 904,956 Lockhart; Simmons v........................................ 1015 Lockhart; Turner v........................ J. ..t... a. 978 Loengard v. Santa Fe Industries, Inc....................... 1034 Loeschnig v. Chrysler Credit Corp.......................... 1035 Loftis v. Leeke............................................. 966 Long; Brickhouse v. ............................................ 967 XXX TABLE OF CASES REPORTED Page Long; Florida v. .............................................. 1019 Long; Texas v. ............................................... 993 Long Island Railroad Pension Plan; Rose v..................... 936 Lonsdale v. Cagle............................................. 989 Lopes; McCarthy v.... ..i..................................... 966 Los Angeles County; Lungley v. ............................... 970 Los Angeles County; Sisco v.................................. 1023 Losey v. Dugger.............................................. 1036 Lou v. Belzberg............................................... 993 Louisiana; United States v..................................... 88 Louisiana Dept, of Transportation and Development; Zeringue v... 983 Louisiana Dept, of Wildlife & Fisheries; Jurisich v. ........ 1021 Love v. Dugger................................................ 979 Lowe v. Green................................................ 1012 Lowenfield v. Butler..................................... 995,1014 Lowenfield v. Phelps.......................................... 944 Lowney; McNeil v.. 965 Lucas; St. Johns County v. .................................... 1035 Luna v. New Mexico............................................ 939 Lund v. Norwest Bank Minneapolis.............................. 936 Lungley v. Los Angeles County................................. 970 Luzadder; Honeywell, Inc. v.................................. 1035 Luzerne County Assessment and Valuation Bd.; Rampp v........ 989 Lyles; Woodliff v............................................ 979 Lynaugh; Balawajder v......................................... 968 Lynaugh; Carter v............................................. 938 Lynaugh; Hill v............................................... 980 Lynaugh; James v.......................................... 966,978 Lynaugh; Randolph v........................................... 975 Lynaugh; Selvage v............................................ 983 Lynaugh; Smith v.............................................. 979 Lynaugh; Williams v. ........................................ 1015 Lyng v. Automobile Workers.................................... 360 Lyng v. Northwest Indian Cemetery Protective Assn............. 439 Lynn; Sheet Metal Workers v.................................. 958 Lyons v. Carlson............................................. 1010 Lyons v. Department of Army................................... 972 Maass; Guinn v. ........................................... 1011 Mabey v. Official Comm, of Equity Sec. Holders, A. H. Robins Co. 962 MacDonald v. United States.................................... 906 Machinists v. Boeing Co...................................... 1014 MacKay v. Mercedes Benz of North America...................... 957 Magedman, In re............................................... 974 Maintenance of Way Employes; Chicago & N. W. Transp. Co. v. .. 988 TABLE OF CASES REPORTED XXXI Page Makah Tribe v. Washington ................................... 1034 Malfatto v. United States..................................... 979 Malone, In re................................................. 952 Manassas v. United States.................................... 1017 Manter v. Fayette......................................... 937,984 Manufacturers Hanover Trust Co.; Beck v....................... 1030 March v. Brewster............................................ 1023 Margolin v. Board of Ed., Commack Union Free School Dist.... 1034 Marin v. United States........................................ 968 Marine Midland Bank, N. A.; Alston v. ......................... 1013 Marino v. United States...................................... 1031 Marrero v. Dugger............................................. 965 Marrero; Dugger v............................................. 970 Marsh; Bryant v. ............................................. 989 Marshall v. Marshall.......................................... 990 Marshall; Shepard v.......................................... 1022 Martin; Aiello v............................................. 1008 Martin v. Pennsylvania Bd. of Law Examiners .................. 982 Martinez-Diaz v. United States................................ 937 Maryland v. Anderson.......................................... 913 Maryland; Best v.............................................. 978 Maryland; Bornhardt v......................................... 950 Maryland; McCorkle v.......................................... 963 Maryland Dept, of Assessments & Tax.; Maryland National Bk. v.. 903 Maryland National Bk. v. Maryland Dept, of Assessments & Tax. . 903 Mastelotto v. Exxon Co...................................... 1021 Masters v. United States................................. 980,1012 Masters, Mates & Pilots v. Andrews............................ 962 Mathews; Perry v............................................. 1011 Mathews v. United States....................................... 58 Matias v. United States....................................... 968 Mattox; Klein Independent School Dist. v. ................... 1008 May v. United States.......................................... 964 Mayacamas Corp.; Gulfstream Aerospace Corp. v................. 271 May Centers, Inc.; S. G. Adams Printing & Stationery Co. v.. 944 Mayfield; Arkansas v.......................................... 905 Maynard v. Cartwright........................................... 974 Mayor of District of Columbia; Boos v......................... 312 Mayor of District of Columbia v. Grano.......................... 971 McCarthy; La Rue v. ......................................... 1012 McCarthy v. Lopes............................................... 966 McCline v. Keeney............................................... 964 McCorkle v. Maryland............................................ 963 McCoy, In re ................................................... 985 XXXII TABLE OF CASES REPORTED Page McCoy v. Crest.................................................... 978 McCray v. Texas............................................. 1023 McCutcheon; Peters v.............................................. 990 McDonald, In re................................................... 986 McDonough v. Connecticut.......................................... 906 McGovern v. Meko............................................ 1011 McKean; Mingledolph v....................................... 1031 McKelvey v. Turnage............................................... 535 McKinsey v. Donivan ........................................ 1035 McKoy v. United States............................................ 907 McLaughlin; CNA Financial Corp. v................................. 977 McLaughlin; Johnson v. ........................................... 977 McLaughlin; National Cottonseed Products Assn. v............ 1020 McLaughlin; Prenzler v. ... i...... i............................ 950 McLaughlin v. Sebben.............................................. 956 McLean Credit Union; Patterson v.................................. 617 McLendon; Continental Group, Inc. v............................... 959 McMackin; Calo v.................................................. 979 McMahon v. Franklin Mint Co....................................... 936 McMinn’s Asphalt Co. v. United States............................. 961 McNamara v. San Diego County Dept, of Social Services...... 1005 McNamara; Ward v. ................................................ 963 McNasby; Crown Cork & Seal Co. v............................. 936 McNeal v. United States..................................... 938 McNeil v. Lowney............................................. 965 McNeil v. United States...................................... 987 McQuillen v. Wisconsin Ed. Assn. Council................ 914,1003 McSurely v. Hutchison........................................ 934 McWherter; Donegan v. . 908 Mears; Wislocki-Goin v. ..................................... 936 Meese v. Abbott............................................. 1020 Meese; Deering v............................................. 965 Meese; Slyper v.............................................. 941 Mehar v. C & P Telephone Co. of Md.......................... 1016 Meko; McGovern v............................................ 1011 Memorial Hospital of Laramie County; Paravecchio v........... 915 Mendez v. Mendez........................................ 942,1030 Mercado v. United States..................................... 907 Mercantile National Bank of Ind.; Lisak v. ...................... 1007 Mercedes Benz of North America; MacKay v. ................... 957 Meros, In re................................................ 1002 Merrill Lynch, Pierce, Fenner & Smith, Inc.; Devon Bank v. . 1008 Merrill Lynch, Pierce, Fenner & Smith, Inc.; Umansky v..... 962 Messer v. Zant.............................................. 1029 TABLE OF CASES REPORTED XXXIII Page Messerlian v. United States....................................... 988 METCO, Inc.; Sen Gupta v. ..................................... 1023 Meyer v. Grant................................................. 1003 Meyer; United States v............................................ 940 Miami Herald Publishing Co. v. Gridley..................... 960,1003 Michael H. v. Gerald D.......................................... 903 Michael Reese Hospital & Medical Center; Kirk v................. 905 Michigan; Bettistea v........................................... 964 Michigan Dept, of State Police; Will v......................... 1005 Miera v. Garcia................................................. 959 Millang v. United States........................................ 987 Miller v. United States.................................... 907,1033 Milton v. World Savings & Loan Assn........................ 908,1016 Miner; Phillips v.............................................. 1021 Mine Workers; Mine Workers 1974 Benefit Plan and Trust v. ...... 935 Mine Workers 1974 Benefit Plan and Trust v. Mine Workers....... 935 Mingledolph v. McKean ......................................... 1031 Minnesota; Wright v. .......................................... 1011 Mirabel; Greene v............................................... 983 Mississippi; Banks v........................................... 1008 Mississippi; Booker v........................................... 982 Mississippi v. Davis............................................ 913 Mississippi; Johnson v. .................................... 932,957 Mississippi v. Parker.......................................... 1014 Missouri v. Carpenter........................................... 992 Missouri; Sandies v............................................. 993 Missouri; Watson v............................................ 964 Missouri Highway and Transportation Comm’n v. Catlett.......... 1021 Missouri Highway and Transportation Comm’n; Catlett v. ........ 1021 Mister; Illinois Central Gulf R. Co. v......................... 1035 Mitchell v. United States...................................... 1033 Mittleider v. United States..................................... 980 Modden v. Texas................................................ 1040 Modjeski & Masters v. Carter................................... 1031 Mohiuddin v. California......................................... 950 Moldovan v. Great Atlantic & Pacific Tea Co..................... 904 Moldovan; Great Atlantic & Pacific Tea Co. v.................... 904 Moline v. United States......................................... 938 Monahan v. Federal Trade Comm’n................................... 987 Mondragon; Brecheisen v........................................ 1011 Monroe v. Butler............................................... 1024 Monroe v. Murray............................................... 1012 Montefiore Hospital, Inc.; Gentile v.............................. 979 Montgomery; E & S Design & Development, Ltd. v................. 1008 XXXIV TABLE OF CASES REPORTED Page Montgomery County; Bloor v..................................... 961 Montgomery Ward & Co.; Bilal v................................. 979 Moody v. Boyles................................................ 1012 Moore v. Fulcomer.............................................. 1037 Moore v. United States......................................... 991 Moore; Zant v. ................................................ 1005 Morales v. Ohio................................................ 972 Morgan v. Ohio............................................... 1015 Morgan; Terry v. ................. s.. 994 Morris; Board of Estimate of New York City v. ................. 986 Morris v. Compagnie Maritime des Chargeurs Reunis, S. A...... 1022 Morris v. Doan....................................... 1036 Morris; Jackson v. ............................................ 1010 Morris; Ponterio v. ............................................ 986 Morrison v. Olson.................................. 903,957,985,1020 Morrisville; Jones v. .......................................... 906 Mountain States Tel. & Tel. Co.; Carlin Communications, Inc. v. .. 1029 Mount Dora; Brennan v.......................................... 1029 Mount Joy Mennonite Church; Cassell v.......................... 965 Muncy; Clanton v.............................................. 1000 Mungin v. Georgia.............................................. 908 Munn v. Duck.................................................. 1006 Muresanu; Nicolau v........................................... 1011 Murphy v. Aetna Life & Casualty........................... 944 Murphy; Ohio v........................................... 1040 Murphy v. Sisco............................................ 937,1016 Murray; Draper v. ............................................ 965 Murray; Monroe v.............................................. 1012 Murray v. United States ....................................... 931 Muscogee (Creek) Nation; Oklahoma Tax Comm’n v................. 902 Mustain; Dryden v.............................................. 964 Myers; Elliott v............................................... 1012 Nahoom, In re.................................................. 973 Nasser v. Federal Home Loan Bank Bd........................... 970 National Bank of Detroit; United Metal Products Corp. v...... 1017 National Cottonseed Products Assn. v. McLaughlin............... 1020 National Labor Relations Bd.; Brown Co. v...................... 1039 National Labor Relations Bd. ; Koons Ford of Annapolis, Inc. v. ... 1021 National Labor Relations Bd.; Okun Brothers Shoe Store, Inc. v... 935 National Railroad Passenger Corp.; Landers v................ 652,932 Nebraska; South Dakota v........................................ 902 Nebraska v. Wyoming............................................. 931 Nebraska State Tax Comm’r; Boersma v. .......................... 986 Neece v. United States........................................ 1009 TABLE OF CASES REPORTED XXXV Page Nelson; Lockhart v.¿. 904,956 Nephew; Aurora v. .............................................. 976 New Bedford Fishermen’s Welfare Fund v. Baltic Enterprises, Inc. 904 New England Ins. Co. v. International Bank of Miami............. 989 New Hampshire; Young v........................................... 1008 New Hampshire Personnel Comm’n; Crowley v. .................... 1022 Newhouse, In re................................................. 984 New Jersey; Taylor v............................................. 1036 New Lenox v. Union National Bank & Trust Co. of Joliet......... 906 New Mexico; Cordoba v. .......i.............................. 939 New Mexico; Cotton Petroleum Corp. v.............. ....... 1005 New Mexico; Luna v. .......... 939 New Mexico; Texas v.. 388,953 New Prairie Classroom Teachers Assn.; Colanese v. ............. 1006 Newsome; Thomas v. ......................................... 937 New York; Burr v. ............................................. 989 New York; Grigorov v........................................... 1012 New York; Tumerman v. ...................................... 969 New York City; Clissuras v..................................... 1015 New York City Dept, of Finance; Sterling Bancorp v.............. 950 New York Medical College, Inc.; Konarski v...................... 905 New York State Office of Court Administration; Verhagen v. ..... 930 New York Times Co.; Blatty v.................................... 934 New York Times Co.; Esposito v. ............................... 977 Nicolau v. Muresanu............................................ 1011 Nigro v. Beyer.................................................... 980 Noland v. North Carolina.......................................... 943 Nordberg; Kamen v................................................. 939 Norman v. United States........................................... 907 Norrell; Smith v. ................................................ 966 North Bonneville v. United States.............................. 1007 North Broward Hospital Dist. v. Bowen......................... 1018 North Carolina; Bagley v. ..................................... 1036 North Carolina; Lawson v....................................... 1016 North Carolina; Noland v........................................ 943 North Carolina; Oliver v. ...................................... 1029 North Carolina; Simpson v....................................... 963 North Carolina; Smith v........................................ 1030 Northcutt; Bullard v.............................................. 972 Northeastern Baseball, Inc.; Triple-A Baseball Club Associates v. . 935 Northern Va. Law School v. Southern New England School of Law 1007 Northwestern Bell Telephone Co.; H. J. Inc. v................... 958 Northwest Indian Cemetery Protective Assn.; Lyng v.............. 439 Norton v. Illinois.............................................. 902 XXXVI TABLE OF CASES REPORTED Page Norwest Bank Minneapolis; Lund v.............................. 936 Norwest Bank Worthington v. Ahlers............................ 197 Nu-Air Mfg. Co.; Foreign Credit Ins. Assn. v.................... 976 Nunley v. Oklahoma............................................ 1001 Oberg v. Aetna Casualty & Surety Co........................... 969 Odle v. Commissioner......................................... 1010 Office of Personnel Management; Franklin v. .................. 984 Office of Personnel Management; Hopkins v..................... 1023 Office of Personnel Management; Pendergrass v................. 936 Official Comm, of Equity Sec. Holders, A. H. Robins Co.; Mabey v. 962 Oglesby v. Indiana............................................ 1037 Ohio; Byrd v.............................................. 972 Ohio; Jester v............................................ 972 Ohio; Morales v........................................... 972 Ohio; Morgan v........................................... 1015 Ohio v. Murphy................................................ 1040 Ohio; Penson v................................................ 957 Ohio; Post v............................................. 1016 Ohio; Steffen v.......................................... 916,1030 Ohio; Stumpf v........................................... 1015 Ohio; Zuem v.............................................. 972 Ohio Civil Rights Comm’n; Dayton Power & Light Co. v........ 977 Ohio State Adult Parole Authority; Burton v. ................. 964 Ohse v. Hughes ............................................... 902 Oitker; Jones v. ............................................ 990 Oklahoma; Brecheen v.......................................... 909 Oklahoma; Castro v. .......................................... 971 Oklahoma; Nunley v........................................... 1001 Oklahoma; White v............................................. 907 Oklahoma Dept, of Public Safety; Olim v. .................... 1016 Oklahoma Tax Comm’n; First Federal Savings & Loan Assn. v. ... 901 Oklahoma Tax Comm’n v. Muscogee (Creek) Nation................ 902 Okun Brothers Shoe Store, Inc. v. National Labor Relations Bd. .. 935 Okure; Owens v................................................ 958 Olim v. Oklahoma Dept, of Public Safety...................... 1016 Olivers. North Carolina...................................... 1029 Olsen; Bean Dredging Corp. v................................. 1034 Olson; Morrison v................................ 903,957,985,1020 Olsowy v. United States....................................... 991 One 1984 Lincoln Mark VII Two-Door v. United States........... 976 O.N.E. Shipping, Ltd. v. Flota Mercante Grancolombiana, S. A. .. 986 Operating Engineers v. Catalytic, Inc........................ 1020 Oregon; Dority v............................................ 1034 Oregon; Stuart v............................................... 963 TABLE OF CASES REPORTED XXXVII Page Osburn; Rachelle Laboratories, Inc. v.........'............... 1009 Ospina v. United States........................................ 964 O’Sullivan v. United States................................... 1016 Ottaway Newspapers, Inc.; Speer v.............................. 970 Owens; Diggs v................................................. 979 Owens v. Okure................................................. 958 Owens; Smolarski v. ........................................... 938 Owens-Illinois, Inc. v. Danfield................................ 1029 Pacione, In re................................................ 1019 Page v. Georgia................................................ 907 PaineWebber Group, Inc. v. Parker.............................. 959 Pair Enterprises, Inc.; United States v. ..................... 958,1003 Palumbo v. United States................................... 949,960 Pan American World Airways, Inc.; Adams v...................... 961 Pan American World Airways, Inc.; Gendron v. ................. 1008 Para-Professional Law Clinic; Zimmerman v...................... 993 Paravecchio v. Memorial Hospital of Laramie County............. 915 Parham v. United States........................................ 964 Paris v. State Division of Correction......................... 1011 Paris Adult Bookstore II v. Dallas ........................... 1042 Parke; Stamps v................................................ 980 Parker; Mississippi v......................................... 1014 Parker; PaineWebber Group, Inc. v.............................. 959 Parker v. United States.................................... 938,991 Parker-Hannifin Corp. v. Kiser................................. 906 Parks v. Allsbrook............................................ 1036 Pasadena Citizens for Representative Govt.; H-CHH Associates v. 971 Pascarella; Whitaker v........................................ 1018 Patterson v. McLean Credit Union................................. 617 Patterson v. United States .................................... 922 Pavlico v. United States......................................... 951 Pearl v. Apel.................................................... 966 Peart; Tyler v. .............................................. 1012 Peeples v. Commissioner.......................................... 936 Pendergrass v. Office of Personnel Management.................. 936 Pendleton v. United States....................................... 968 Pennell v. San Jose............................................. 1 Pennsylvania; Clayton v. ........................................ 929 Pennsylvania v. Equal Employment Opportunity Comm’n........... 935 Pennsylvania v. Union Gas Co..................................... 958 Pennsylvania Bd. of Law Examiners; Martin v.................... 982 Pennwalt Corp. v. Durand-Wayland, Inc............................ 961 Pennwalt Corp.; Durand-Wayland, Inc. v........................ 1009 Pennzoil Co.; Texaco Inc. v. .................................. 994 XXXVIII TABLE OF CASES REPORTED Page Penson v. Ohio.................................................. 957 Peralta v. Heights Hospital..................................... 80 Peralta v. Heights Medical Center, Inc............................ 80 Perez v. United States........................................... 907 Perlmutter v. United States...................................... 935 Perry v. Leeke.............................................. 976,1003 Perry v. Mathews ............................................... 1011 Perry v. U. S. Parole Comm’n..................................... 963 Peters; Arcoren v................................................ 987 Peters v. McCutcheon............................................. 990 Peters v. Shreveport............................................. 930 Peters v. Trowell........................................... 967,1030 Peterson; Richards v............................................ 1023 Peterson; Whitaker v............................................ 1018 Petrone v. United States......................................... 934 Petsock; Bush v................................................. 1036 Pfeiffer; Thompson v. ...................................... 907,1015 Phelps; Lowenfield v. ........................................... 944 Philadelphia v. Disabled in Action of Pa......................... 989 Philadelphia v. State, County & Municipal Employees.............. 982 Phillips v. Miner............................................... 1021 Pierce; Price v.................................................. 960 Pittston Coal Group v. Sebben.................................... 956 Plan and Zoning Comm’n of West Hartford; Udolf v................. 995 Platsis v. E. F. Hutton & Co..................................... 962 Playboy Enterprises; Easter Seal Society of La. v................ 981 Plaza Pasadena v. Citizens for Representative Government....... 971 Plitt Theatres, Inc.; Coston v. ................................ 1007 Poliak v. United States......................................... 1029 Ponterio v. Morris............................................... 986 Pope; Tulsa Professional Collection Services, Inc. v............. 478 Pope v. Virginia................................................ 1015 Port Authority of N. Y. & N. J.; Delta Air Lines, Inc. v....... 1006 Porter v. United States............................................ 934 Porto v. krmco, Inc................................................ 937 Post v. Ohio................................................... 1016 Potter v. United States ......................................... 937 Potter v. Wackenhut Corp.................................... 902,1015 Poudre Valley Rural Electric Assn., Inc. v. Greeley.............. 949 Praprotnik; St. Louis v.......................................... 112 Pratt & Whitney Canada Inc. v. Rainey........................ 904,994 Prenzler v. McLaughlin........................................... 950 President of United States; Hannivig v........................... 990 Price, In re..................................................... 952 TABLE OF CASES REPORTED xxxix Page Price v. Pierce............................................... 960 Price v. Scott................................................ 961 Price Waterhouse v. Hopkins................................... 933 Princeton Univ.; Jones v. ......... i. 906 Pritchett v. Boutwell........................................ 1012 Production Workers; Checker Motors Corp. v................... 1009 Prosdocimo v. United States................................... 978 Providence Journal Co.; United States v....................... 693 Prudential Ins. Co.; Colony Square Co. v.....,................ 977 Prudent Supply, Inc.; Raschick v.............................. 935 Pryor v. Texas................................................. 1036 Public Citizen; Cosmetic, Toiletry & Fragrance Assn. v....... 1006 Public Employment Relations Bd.; Regents of Univ, of Cal. v. .... 589 Public Utilities Comm’n of Haw. v. Hawaiian Telephone Co..... 956 Puerto Rico Dept, of Consumer Affairs v. Isla Petroleum Corp. ... 495 Puleio v. Vose.......................,........................ 990 Purcell v. Commissioner......................................... 987 Purvis, In re................................................ 1033 Pushard v. Russell............................................ 965 Pyle v. United States........................................... 905 Pyro Mining Co. v. Smith..................................... 989 Quintero-Gonzalez v. United States.............................. 969 Rachelle Laboratories, Inc. v. Osburn........................ 1009 Rademaker v. Teachers College, Columbia Univ.................... 972 Rafferty; Hochman v.......................................... 1022 Rafferty; Thomas v........................................... 1016 Railroad Retirement Bd.; Frazier v.............................. 944 Rainey; Beech Aerospace Services, Inc. v. ...................... 903 Rainey; Beech Aircraft Corp. v. .............................. 903 Rainey; Pratt & Whitney Canada Inc. v..................... 904,994 Ralston; Jones v. ........................................... 1023 Ramey v. General Accounting Office............................ 960 Ramos v. United States........................................ 964 Rampp v. Luzerne County Assessment and Valuation Bd........... 989 Randolph v. Lynaugh........................................... 975 Rapp v. United States ....................................... 1001 Raschick v. Prudent Supply, Inc............................... 935 Ray v. Bowen................................................ 1011 Ray v. United States.......................................... 964 Reagan; Hannivig v........-................................... 990 Reagin v. Terry.............................;............ 906,1015 Reddan, In re............................................... 985 Reddington v. Bowen........................................... 905 Red Lake Band of Chippewa Indians v. United States............ 935 XL TABLE OF CASES REPORTED Page Reed; Harris v............................................ 934,974 Reed v. Transportation Union.................................. 933 Reed v. United States........................................ 1012 Reese Hospital & Medical Center; Kirk v....................... 905 Refugia Sandoval; Cazares v. ................................. 908 Regents of Univ, of Cal. v. Public Employment Relations Bd... 589 Reigh v. Schleigh............................................. 968 Reigh; Schleigh v. ........................................... 970 Reiszner v. Reiszner.......................................... 984 Reliance Ins. Co.; King v..................................... 988 Replan Dev., Inc. v. Dept, of Housing Preserv. & Dev. of N. Y. C. 950 Reporters Committee for Freedom of Press; Department of Justice v. 1005 Rester Refrig. Serv.; U. A. 198 Health & Welf., Ed. & Pens. Fds. v. 904 Reumayr v. Scott.............................................. 967 Rhode Island; D’Amario v. .................................... 966 Rhoden v. Tennessee........................................... 1023 Rial v. Jerisha............................................... 1013 Richards v. Peterson......................................... 1023 Richards v. United States..................................... 991 Rideout; Freeman v............................................ 982 Risley; Armstrong v.......................................... 1010 Rivera v. Texas............................................... 978 Roberts v. Appellate Dept., Superior Court of Cal., Los Angeles Cty. 1009 Roberts v. Florida............................................ 943 Roberts v. Gubler ........................................... 1009 Roberts v. Roberts............................................ 963 Roberts v. Scully............................................. 978 Robinson, In re .............................................. 973 Robinson v. Amtrak Railroad Corp.............................. 965 Robinson v. Decatur........................................... 908 Robinson; United States v. .................................... 25 Robinson Humphrey/American Express, Inc. v. Sanders........... 959 Rockefeller Group, Inc. v. 48th Street Steakhouse, Inc....... 1035 Rockland Industries, Inc. v. Chumbley......................... 961 Rodriguez v. United States.................................... 965 Rogers v. Carver.............................................. 937 Rogers v. Cheyenne .......................................... 1017 Rogers v. United States....................................... 969 Roggio v. United States...................................... 1019 Rolleston v. Eldridge......................................... 963 Romero v. Colorado............................................ 990 Ronek v. Gallatin County...................................... 962 Ron Pair Enterprises, Inc.; United States v.............. 958,1003 Ronson v. Commissioner of Correction of N. Y.................. 972 TABLE OF CASES REPORTED XLI Page Rosberg v. Goeres............................................. 1011 Rose v. Long Island Railroad Pension Plan...................... 936 Rosee v. Commodity Futures Trading Comm’n...................... 971 Rosenbaum v. Rosenbaum.................................... 950,1031 Rosenthal, In re............................................... 951 Ross v. Zimmerman.............................................. 908 Rougeau v. Texas.............................................. 1029 Rowe Price Prime Reserve Fund, Inc.; Schuyt v................. 1034 Roy, In re................................................ 932,1030 Ruben; Swan v. ................................................ 934 Ruben; Warren City School Dist. Bd. of Ed. v. .................. 934 Rubino, In re................................................. 1002 Russell; Pushard v............................................. 965 Rydell v. Atlantic City....................................... 1004 Sackman-Gilliland Corp.; Eisen v. .............................. 1001 St. Johns County v. Lucas..................................... 1035 St. Louis v. Jamison........................................... 987 St. Louis v. Praprotnik........................................ 112 Salisbury v. United States..................................... 907 Samayoa v. Chicago Bd. of Ed................................... 951 Samel v. LeCureux.............................................. 969 Sampson v. Weidell............................................. 989 Sanders; Robinson Humphrey/American Express, Inc. v.......... 959 San Diego Cty. Dept, of Social Services; McNamara v........... 1005 San Diego & Imperial Ctys. Butchers’ Pens. Tr. v. Cuyamaca Meats 1008 Sandies v. Missouri............................................ 993 San Francisco County Democratic Central Committee; Eu v...... 1004 San Jose; Pennell v.............................................. 1 San Quentin Warden; Gates v.................................... 964 Santa Barbara v. Hall.......................................... 940 Santa Barbara Foundation; Toledo Trust Co. v................... 916 Santa Fe Industries, Inc.; Loengard v. ....................... 1034 Santiago v. United States ..................................... 969 Santistevan v. California ..................................... 989 Sappenfield v. Indiana......................................... 933 Sargent; Kaestel v. ........................... v.......... 969 Sazenski v. United States ..................................... 908 Scallio v. United States ..................................... 1007 Scharrer v. United States................................. 935,1042 Schell v. United States........................................ 961 Schleigh v. Reigh.............................................. 970 Schleigh; Reigh v.............................................. 968 Schmidt v. Serpas.............................................. 904 XLII TABLE OF CASES REPORTED Page Schneidewind v. ANR Pipeline Co.................................. 293 Schroeder v. United States.................................... 1008 Schuler, In re.................................................. 973 Schultz, In re................................................... 973 Schuyt v. Rowe Price Prime Reserve Fund, Inc.................. 1034 Schwartz v. Cuomo............................................. 1009 Scott v. Garraghty............................................... 978 Scott; Price v................................................. 961 Scott; Reumayr v................................................ 967 Scott Paper Co.; Trenton v.................................... 1022 Scrapp Investment Co. v. United States........................ 1010 Scroggy v. Summers............................................. 941 Scully; DeVeaux v. .............................................. 980 Scully; Gains v............................................... 1013 Scully; Roberts v................................................ 978 Seabold; Frazier v............................................ 1036 Seabold; Wesselman v.......................................... 1024 Seaman, In re...........,................................... 1019 Sebben; McLaughlin v.......................................... 956 Sebben; Pittston Coal Group v................................... 956 Secretary of Ag. v. Automobile Workers........................... 360 Secretary of Ag. v. Northwest Indian Cemetery Protective Assn. . 439 Secretary of Air Force; Gonzales v.............................. 969 Secretary of Army; Bryant v.................................... 989 Secretary of Defense v. Doe............................... 904,1003 Secretary of Defense; Howard v................................ 1009 Secretary of Ed.; Honig v...................................... 988 Secretary of HHS v. Adams House Health Care v................. 1018 Secretary of HHS; Bethesda Hospital Assn. v.................... 399 Secretary of HHS; Daniels v.................................... 944 Secretary of HHS v. Galbreath................................... 74 Secretary of HHS v. Georgetown Univ. Hospital.................. 903 Secretary of HHS; Kitchens v................................... 934 Secretary of HHS v. Kizer...................................... 386 Secretary of HHS; Laurenco v. ................................ 1014 Secretary of HHS; North Broward Hospital Dist. v.............. 1018 Secretary of HHS; Ray v....................................... 1011 Secretary of HHS; Reddington v. ............................... 905 Secretary of HHS v. Tallahassee Memorial Regional Medical Center 1020 Secretary of HHS; University Hospital v. ...........i........... 1018 Secretary of HHS; University of Cincinnati v. ................... 1018 Secretary of HHS; Wisconsin Dept, of Health & Social Services v. 1017 Secretary of Housing and Urban Development; Price v. .......... 960 Secretary of Interior; Afifi v. ............................... 966 TABLE OF CASES REPORTED XLIII Page Secretary of Labor; Johnson v.................................... 977 Secretary of Labor; National Cottonseed Products Assn. v...... 1020 Secretary of Labor; Prenzler v. ................................. 950 Secretary of Labor v. Sebben..................................... 956 Secretary of State of Cal. v. San Francisco Cty. Democratic Comm. 1004 Secretary of Treasury; South Carolina v...................... 505,931 Securities and Exchange Comm’n; Economou v. ................ 938,1004 Selchow & Righter Co.; Worth v. ¡ 977 Seltenrich v. Titus............................................ 1022 Seltenrich v. United States...................................... 980 Selvage v. Lynaugh............................................. 983 Sen Gupta v. METCO, Inc......................................... 1023 Senjudo v. United States........................................ 1010 Serpas; Schmidt v................................................ 904 Server, In re................................................... 952 S. G. Adams Printing & Stationery Co. v. May Centers, Inc..... 944 Shaftan; Congregation Sons of Israel v........................... 905 Sharp Electronics Corp.; Business Electronics Corp. v............ 717 Shaw v. United States....................................... 991,1022 Shea v. United States......................................... 991 Sheet Metal Workers v. Lynn...................................... 958 Shelby County; Tickle v. ....................................... 1008 Shell Offshore Inc.; Ainsworth v................................ 1034 Shell Offshore Inc. v. Associated Gas Distributors.............. 1006 Shell Oil Co. v. Director of Revenue of Mo....................... 983 Shepard v. Marshall............................................. 1022 Shiel v. United States.......................................... 1010 Shiflet v. Lane................................................ 965 Shimoda v. Akao.................................................. 993 Shimoda; Bright v................................................ 970 Shipco 2295, Inc. v. Avondale Shipyards, Inc.................... 1007 Shipps v. Stoughton Police Dept.............................. 1017 Short v. United States........................................... 990 Shreveport; Peters v............................................. 930 Shulsen; Andrews v.......................................... 919,1015 Shum v. Illinois................................................ 1015 Sierra, In re................................................... 1002 Sierra Club; Union Oil Co. of Cal. v............................. 931 Signal Hill; Fleisher v. ........................................ 961 Sign, Pictorial & Display Industry Pens. Tr. Fd. v. Formetrics, Inc. 904 Simdram v. United States......................................... 978 Simmons v. Lockhart............................................. 1015 Simon, In re................................................... 1002 Simpson v. North Carolina..................................... 963 XLIV TABLE OF CASES REPORTED Page Sisco v. Los Angeles County.................................... 1023 Sisco; Murphy v. .......................................... 937,1016 Slater v. Delaware Trust Co..................................... 994 Slaughter v. District of Columbia............................... 964 Slyper v. Meese................................................. 941 Small Business Admininstration; Wilson-Thomas v................. 932 Smith, In re................................................ 951,985 Smith v. Brigham................................................ 980 Smith v. Eads.................................................. 1022 Smith; Employment Div., Dept, of Human Resources of Ore. v. ... 660 Smith v. Florida................................................ 971 Smith; Guider v............................................... 906 Smith v. Lynaugh ............................................. 979 Smith v. Norrell................................................ 966 Smith v. North Carolina........................................ 1030 Smith; Pyro Mining Co. v........................................ 989 Smith v. United States................................. 908,969,1013 Smith; Yee v. ............................................. 936,1042 Smolarski v. Owens........................................... 938 Snead v. Albuquerque........................................... 1009 Snow; Williams v................................................ 979 Snyder v. Kansas................................................ 963 Sobony v. Tilberry.............................................. 962 Sotello v. United States....................................... 1024 South Carolina v. Baker..................................... 505,931 South Central Enterprises, Inc. v. Farrington.................. 1021 South Dakota; Hagen v........................................... 930 South Dakota v. Nebraska........................................ 902 Southern Cal. Gas Co. v. Federal Energy Regulatory Comm’n .... 1006 Southern New England School of Law; Northern Va. Law School v. 1007 Southwestern Bell Telephone Co. v. Arkansas Public Service Comm’n 989 Speer v. Ottaway Newspapers, Inc................................ 970 Spellman v. United States...................................... 1030 Spencer v. U. S. Court of Appeals............................... 971 Spiegel v. Continental Ill. National Bank & Trust Co. of Chicago .. 1009 Spradley, In re................................................. 975 Springer v. United States....................................... 938 Stamps v. Parke................................................. 980 Stanships, Inc.; Buchanan v. ................................... 265 Starks v. Texas................................................. 966 State. See name of State. State Bar of Cal.; George V. v. .,....:....................... 1035 State, County & Municipal Employees; Philadelphia v. ........... 982 State Division of Correction; Paris v.......................... 1011 TABLE OF CASES REPORTED XLV Page Steelworkers v. Cherokee Electric Cooperative................. 1038 Steffen v. Ohio........................................... 916,1030 Stein v. United States........................................ 1010 Sterling Bancorp v. New York City Dept, of Finance............. 950 Stincer v. Kentucky............................................ 965 Stokes v. University of Tenn, at Martin........................ 935 Stokwitz v. United States..................................... 1033 Stoughton Police Dept.; Shipps v.............................. 1017 Stout v. Grand Prairie Independent School Dist................. 907 Strauss, In re ................................................ 973 Strickland; E & T Realty v. ................................... 961 Strickler v. United States....................................... 966 Strong v. Huckabay............................................ 1011 Stuart v. Oregon ................................................ 963 Stuart; United States v....................................... 1033 Stumpf v. Ohio................................................ 1015 Sullivan, In re .............................................. 1019 Summers; Scroggy v. ................................ J........ 941 Sun Oil Co. v. Wortman........................................... 985 Superintendent of penal or correctional institution. See name or title of superintendent. Sutton Place Development Co.; Abacus Mortgage Investment Co. v. 961 Swan v. Ruben.................................................. 934 Sweigart v. United States...................................... 961 Sykes; Henslee v.......................................... 974,1036 Syme, In re................................................... 1004 Szabo Food Service, Inc. v. Canteen Corp....................... 901 Sztan v. Department of Navy................................... 1035 Tallahassee Memorial Regional Medical Center; Bowen v......... 1020 Tanama v. Alaska Dept, of Health and Social Services........... 951 Tasby, In re.................................................. 1004 Tatum v. Armontrout............................................ 966 Taylor; Cochran v............................................. 1009 Taylor; First American National Bank of Knoxville v........... 1001 Taylor v. Henry Vogt Machine Co................................ 972 Taylor v. Illinois............................................. 983 Taylor v. New Jersey.......................................... 1036 Taylor v. United States.................................... 968,992 Taylor; United States v........................................ 902 Teachers College, Columbia Univ.; Rademaker v.................. 972 Teague v. B. E. & K. Communications, Inc....................... 962 Teague v. Lane................................................. 933 Tempel v. Alaska...................................?. ?....... 1016 Teng v. Alabama Agricultural and Mechanical Univ.............. 1034 XLVI TABLE OF CASES REPORTED Page Tennessee; Bemis Pentecostal Church v. ..................... 930,1029 Tennessee; Johnson v.......................................... 994 Tennessee; Rhoden v.......................................... 1023 Tennessee; Wilson v........................................... 960 Terminal Realty Penn Co. v. Auerbach.......................... 905 Terpstra v. Ford Motor Credit Co.............................. 935 Terry v. Morgan............................................ 994 Terry; Reagin v.......................................... 906,1015 Test; Townes v. ..........-................................... 966 Texaco Inc. v. Pennzoil Co.................................... 994 Texas; Barnard v. ............................................ 929 Texas; Cuevas v. ............................................ 1015 Texas; Hamilton v............................................ 1042 Texas; Legrone v. ............................................ 937 Texas v. Long................................................. 993 Texas; McCray v.............................................. 1023 Texas; Modden v.............................................. 1040 Texas v. New Mexico....................................... 388,953 Texas; Pryor v.............................................. 1036 Texas; Rivera v.............................................. 978 Texas; Rougeau v. ............................................ 1029 Texas; Starks v............................................... 966 Texas; Wicker v. ............................................. 938 Texas Eastern Transmission Corp. v. FERC..................... 1006 Texas Monthly, Inc. v. Bullock................................ 958 Thacker v. Bumgarner......................................... 1011 Thomas, In re.................................................. 986 Thomas v. Newsome............................................. 937 Thomas v. Rafferty........................................... 1016 Thomas v. United States....................................... 980 Thompson; Dugger v............................................. 960 Thompson v. Pfeiffer..................................... 907,1015 Tickle v. Shelby County...................................... 1008 Tilberry; Sobony v............................................. 962 Times-Picayune Publishing Corp. v. Edwards..................... 934 Timmonds v. United States...................................... 938 Tinsley v. California.......................................... 964 Titus; Seltenrich v. ........................................ 1022 Tobias v. United States........................................ 991 Tocco v. Arizona............................................... 963 Toledo Trust Co. v. Santa Barbara Foundation................... 916 Toner; Lederle Laboratories v.................................. 942 Town. See name of town. Townes v. Test................................................ 966 TABLE OF CASES REPORTED XL VII Page Townes v. Virginia................................................ 971 Transportation Union; Reed v...................................... 933 Trans World Airlines, Inc. v. Flight Attendants.......... 175,958,1003 Trans World Airlines, Inc. v. Kronfeld........................... 1007 Trapani v. CBS Records, Inc....................................... 944 Traynor v. Turnage................................................ 535 Treasury Employees v. Von Raab.................................... 903 Trenton v. Scott Paper Co....................................... 1022 Trettis; Zuschlag v............................................... 967 Trilling, In re .................................................. 974 Trinidad Corp.; Hanson v.................................... 1009 Triple-A Baseball Club Associates v. Northeastern Baseball, Inc... 935 Trove v. Culbertson......................................... 1023 Trowell; Peters v. .......................................... 967,1030 Tulsa Professional Collection Services, Inc. v. Pope.............. 478 Tumerman v. New York.............................................. 969 Turnage; McKelvey v.......................................... 535 Turnage; Traynor v. .............................................. 535 Turner v. Atlanta................................................. 934 Turner v. Lockhart.......... ..................................... 978 Tyler v. Peart................................................. 1012 U. A. 198 Health & Welf., Ed. & Pens. Fds. v. Rester Refrig. Serv. 904 Uberoi v. University of Colo...................................... 988 Udolf v. Plan and Zoning Comm’n of West Hartford.................. 995 Ulmer; Breck v................................................... 1023 Umansky v. Merrill Lynch, Pierce, Fenner & Smith, Inc............. 962 Union. For labor union, see name of trade. Union de Transports Aeriens v. Beckman............................ 934 Union Gas Co.; Pennsylvania v..................................... 958 Union National Bank & Trust Co. of Joliet; New Lenox v......... 906 Union Oil Co. of Cal. v. Sierra Club.............................. 931 United. For labor union, see name of trade. United Metal Products Corp. v. National Bank of Detroit........ 1017 United States. See name of other party. United States Army Tank-Automotive Command; Lawrence v..... 1022 U. S. Court of Appeals; Evans v................................... 984 U. S. Court of Appeals; Spencer v. .............................. 971 U. S. District Court; Gravatt v................................. 1010 U. S. District Court; Hunter v................................... 965 U. S. District Judge v. Committee on Judiciary of House of Reps.. 1001 U. S. District Judge v. Judicial Conference of United States.. 1014 U. S. District Judge; Kamen v. ......................... ..... 939 U. S. Parole Comm’n; Perry v...................................... 963 U. S. Postal Service; Benjamin v.................................. 990 XL VIII TABLE OF CASES REPORTED Page U. S. Postal Service; Houston v............................... 1006 U. S. Postal Service v. Letter Carriers....................... 680 United Technologies Corp.; Boyle v......................... 931,974 United Van Lines, Inc.; Hughes v............................... 913 University Hospital v. Bowen.................................. 1018 University of Cincinnati v. Bowen............................. 1018 University of Colo.; Uberoi v.................................. 988 University of Tenn, at Martin; Stokes v........................ 935 Upjohn Co.; Able v... 963 Upshur; Wallace v. ........................................... 1012 Usman v. Immigration and Naturalization Service .............. 1042 Utah; Branch v................................................ 1036 Utah State Tax Comm’n; Christensen v.......................... 1030 V. v. State Bar of Cal....................................... 1035 Valenzuela Gamez v. United States............................. 1013 Vannier, In re .................................................. 906 Vavrik, In re.................................................... 951 Veale v. Eggert.................................................. 978 Verhagen v. New York State Office of Court Administration..... 930 Vermont Dept, of Taxes v. Keys................................ 1035 Viacom International; Howard v................................... 902 Vigil v. Abourezk................................................ 966 Village. See name of village. Vinson v. Johnson............................................. 1023 Virginia; DeLong v.. 929 Virginia; Pope v. ............................................ 1015 Virginia; Townes v............................................. 971 Vogt Machine Co.; Taylor v..................................... 972 Volt Info. Sciences v. Board of Trustees, Leland Stanford Jr. U. .. 976 Von Raab; Treasury Employees v. ............................... 903 Vose; Puleio v. ............................................... 990 Wackenhut Corp.; Potter v. ............................... 902,1015 Wade, In re.................................................... 973 Wade v. Department of Justice.................................. 963 Wadley Research Institute & Blood Bank v. Houston............. 1008 Walker v. Consumers Power Co................................... 930 Wallace v. Upshur............................................. 1012 Wallmuller v. California...................................... 1036 Walls v. Adult Parole Authority of Ohio ...................... 1036 Ward; Kotyk v................................................. 1037 Ward v. McNamara............................................... 963 Ward v. United States..................................... 992,1022 Warden. See name of warden. Wards Cove Packing Co.; Atonio v............................... 989 TABLE OF CASES REPORTED XLIX Page Warren, In re.................................................. 973 Warren City School Dist. Bd. of Ed. v. Ruben................... 934 Washington; Beepier v............................................ 972 Washington; Fied v. ............................................. 938 Washington; Makah Tribe v..................................... 1034 Water; Williams v............................................... 1024 Watkins v. Jones.............................................. 1013 Watson v. Missouri............................................... 964 Wattawa v. Wisconsin Dept, of Health & Social Services-Probation 976 Webster v. Doe................................................. 902 Weidell; Sampson v. ........................................... 989 Weil v. Chu.................................................... 901 Weldon; Williams v............................................... 964 Wells Fargo Bank; United States v.............................. 351 Wesselman v. Seabold.......................................... 1024 West; Ellis v. ............................................... 1022 West v. United States........................................... 1007 West American Ins. Co. of Ohio Casualty Group; Hurley v....... 1001 Westfall; Bennett v........................................... 1037 Westinghouse Electric Corp.; Florida Power & Light Co. v...... 1021 West Virginia; Holmes v........................................ 905 Wheeler v. Commissioner of Highways of Ky........................ 944 Whitaker v. Pascarella........................................ 1018 Whitaker v. Peterson.......................................... 1018 White v. Department of Justice................................... 944 White; Illinois v............................................. 1006 White v. Oklahoma................................................ 907 Whittington v. Cunnagin.......................................... 979 Wicker v. Texas.................................................. 938 Wilcox; Haas v................................................... 938 Wilkinson; Kelly v............................................ 1034 Will v. Michigan Dept, of State Police ....................... 1005 Willcox v. Federal Energy Regulatory Comm’n................... 1006 Williams v. Arthur............................................... 967 Williams v. Burlington Northern Inc.............................. 991 Williams v. California........................................... 937 Williams v. Lawyers Professional Responsibility Bd............... 950 Williams; Little Rock v.......................................... 931 Williams v. Lynaugh........................................... 1015 Williams v. Snow............................................... 979 Williams v. United States ..................................... 990 Williams v. Water............................................. 1024 Williams v. Weldon............................................. 964 Williams; Winslow v.............................................. 951 L TABLE OF CASES REPORTED Page Williams v. Zimmerman.......................................... 967 Williamson v. Florida.......................................... 929 Wilson v. Butler............................................ 1015 Wilson v. Tennessee............................................ 960 Wilson v. United States...................................... 908 Wilson-Thomas v. Small Business Administration................. 932 Wing; Giles v................................................. 968 Winnebago County Dept, of Social Services; DeShaney v.......... 958 Winnebago Tribe of Neb. v. Department of Revenue of Iowa.... 1021 Winslow v. Williams.......................................... 951 Wisconsin; Avery v........................................... 937 Wisconsin; Davis v........................................ 1010 Wisconsin Dept, of Health & Social Services v. Bowen........ 1017 Wisconsin Dept, of Health & Social Services-Probation; Wattawa v. 976 Wisconsin Ed. Assn. Council; McQuillen v................ 914,1003 Wise v. Arlington County.................................... 1029 Wislocki-Goin v. Mears......................................... 936 Wittmaack, In re............................................... 951 Wolf v. United States.......................................... 960 Woodliff v. Lyles.............................................. 979 Woods v. Federal Home Loan Bank Bd. ......................... 959 World Savings & Loan Assn.; Milton v.................... 908,1016 Worth v. Selchow & Righter Co................................. 977 Wortman; Sun Oil Co. v. ..................................... 985 Wrenn v. Gould ............................................. 1015 Wright v. Minnesota......................................... 1011 Wyman v. United States....................................... 980 Wyoming; Nebraska v.......................................... 931 Yancey v. United States...................................... 967 Yee v. Smith........................................... 936,1042 Young; Culbert v. ........................................... 990 Young v. New Hampshire...................................... 1008 Young v. United States.................................. 968,1012 Youngblood; Arizona v. ................................. 903,1033 Young & Co. v. Burull........................................ 961 Zant; Messer v..................................'........... 1029 Zant v. Moore.............................................. 1005 Zeringue v. Louisiana Dept, of Transportation and Development .. 983 Ziegler; Gagliardi v........................................... 987 Zimmerman; Hussmann v......................................... 967 Zimmerman v. Para-Professional Law Clinic...................... 993 Zimmerman; Ross v.............................................. 908 Zimmerman; Williams v......................................... 967 Zuem v. Ohio................................................... 972 Zuschlag v. Trettis............................................ 967 TABLE OF CASES CITED Page Aaron v. SEC, 446 U.S. 680 240 Abbott Laboratories v. Gardner, 387 U.S. 136 542 Abdelhamid v. Ilchert, 774 F. 2d 1447 941 Abood v. Detroit Bd. of Ed., 431 U.S. 209 369 Abrams v. Johns-Manville Corp., [1981-1982] CCH Fed. Sec. L. Rep. H98,348 251, 252, 262 Abrams v. United States, 250 U.S. 616 51 Adams Express Co. v. Cron-inger, 226 U.S. 491 914 Adams House Health Care v. Heckler, 817 F. 2d 587 403 Adickes v. S. H. Kress & Co., 398 U.S. 144 127, 138, 144 Affiliated Ute Citizens v. United States, 406 U.S. 128 234, 243, 245 Agins v. Tiburon, 447 U.S. 255 18-20 Ahrens v. Clark, 335 U.S. 188 618 Air Products & Chemicals, Inc. v. Illinois Gulf R. Co., 721 F. 2d 483 914 Alabama v. King & Boozer, 314 U.S. 1 521 Albrecht v. Herald Co., 390 U.S. 145 735 Alexander v. Choate, 469 U.S. 287 548, 549 Alfred Dunhill of London, Inc. v. Republic of Cuba, 422 U.S. 1005 618 Alimenta (U.S.A.), Inc. v. Anheuser-Busch Cos., 803 F. 2d 1160 267 Allen v. Illinois, 478 U.S. 364 631, 646 Allen v. Wright, 468 U.S. 737 7 Page Amazon v. State, 487 So. 2d 8 926 American Federation of Government Employees, AFL-CIO v. Nimmo, 711 F. 2d 28 544 American General Ins. Co. v. Equitable General Corp., 493 F. Supp. 721 241 American Trucking Assns., Inc. v. Atchison, T. & S. F. R. Co., 387 U.S. 397 306 Ananeh-Firempong v. INS, 766 F. 2d 621 108, 109 Anderson v. Dunn, 6 Wheat. 204 637, 709, 711-713 Andres v. United States, 333 U.S. 740 702 Andrews v. Louisville & Nashville R. Co., 406 U.S. 320 618 Andrews v. Southern Discount Co. of Ga., 662 F. 2d 722 282 Arizona v. Maricopa County Medical Society, 457 U.S. 332 739, 744 Arizona v. San Carlos Apache Tribe, 463 U.S. 545 273 Arkansas Elec. Coop. Corp, v. Arkansas Public Serv. Comm’n, 461 U.S. 375 295, 299, 305, 500, 503 Arkansas Louisiana Gas Co. v. Hall, 453 U.S. 571 301 Armstrong v. Manzo, 380 U.S. 545 84, 86, 87 Armstrong v. United States, 364 U.S. 40 9, 19, 22 Arnolds v. Veterans’ Administration, 507 F. Supp. 128 544 Arthur Young & Co. v. United States District Court, 549 F. 2d 686 251 Ashwander v. TVA, 297 U.S. 288 354, 446, 673 Aspen Skiing Co. v. Aspen Highlands Siding Corp., 472 U.S. 585 753 LI LII TABLE OF CASES CITED Page Associated General Contractors of Cat, Inc. v. Carpenters, 459 U.S. 519 732 Associated Press v. Walker, 388 U.S. 130 51 Athens Community Hospital, Inc. v. Schweiker, 222 U.S. App. D. C. 363 403 Attorney General v. Delaware & Hudson Co., 213 U.S. 366 575 Attorney General v. Michigan Public Serv. Comm’n, 412 Mich. 385 307 Automobile Workers v. Brock, 477 U.S. 274 7 Automotive, Pet. & Allied Indus. Employees Union, Local 618 v. Town & Country Ford, 709 F. 2d 509 1039 Auto Workers v. Wisconsin Employment Relations Bd., 336 U.S. 245 618 Autry v. Estelle, 464 U.S. 1 998 Au Yi Lau v. INS, 181 U.S. App. D. C. 99 109 Aviles-Torres v. INS, 790 F. 2d 1433 108 Babbitt v. Farm Workers, 442 U.S. 289 8, 580 Badoni v. Higginson, 638 F. 2d 172 474 Bahramnia v. INS, 782 F. 2d 1243 108 Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176 280, 282, 285, 288 Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 618 Bankers Life & Cas. Co. v. Holland, 346 U.S. 379 289 Bank of Marin v. England, 385 U.S. 99 491 Baptist Hospital East v. Secretary of Health and Human Services, 802 F. 2d 860 402 Barclay v. Florida, 463 U.S. 939 924 Barclay v. State, 343 So. 2d 1266 928 Page Barclay v. State, 470 So. 2d 691 928, 929 Barlow v. Collins, 397 U.S. 159 542 Basic Inc. v. Levinson, 485 U.S. 224 777, 781 Bates v. Little Rock, 361 U.S. 516 367 Batson v. Kentucky, 476 U.S. 79 1040, 1041 Baugh, In re, 73 B. R. 414 204 Baumgartner v. United States, 322 U.S. 665 51, 776 B. A. V., Inc., In re, 68 B. R. 411 210 Baxter v. Palmigiano, 425 U.S. 308 32 Beacon Theatres, Inc. v. Westover, 359 U.S. 500 288,940 Beaunit Mills, Inc. v. Eday Fabric Sales Corp., 124 F. 2d 563 283 Benton v. Maryland, 393 U.S. 994 618 Berenyi v. District Director, INS, 385 U.S. 630 782 Berman v. Gerber Products Co., 454 F. Supp. 1310 241 Bessette v. W. B. Conkey Co., 194 U.S. 324 634 Bibbs v. Block, 778 F. 2d 1318 915 Big Dry Angus Ranch, Inc., In re, 69 B. R. 695 210 Black v. Boyd, 248 F. 2d 156 940 Blackie v. Barrack, 524 F. 2d 891 244, 247, 250, 256 Blackmon v. United States, 108 F. 2d 572 770 Blair v. Commissioner, 300 U.S. 5 344 Block v. Community Nutrition Institute, 467 U.S. 340 542 Block v. Hirsh, 256 U.S. 135 12 Bloom v. Illinois, 391 U.S. 194 632 Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723 231, 244, 261, 262 Blunt v. United States, 131 U.S. App. D. C. 306 69 TABLE OF CASES CITED LIII Page Board of Airport Comm’rs of Los Angeles v. Jews for Jesus, 482 U.S. 569 321, 324 Board of Directors of Rotary Int’l v. Rotary Club, 481 U.S. 537 367 Bob Jones Univ. v. United States, 456 U.S. 922 704, 713 Bob Jones Univ. v. United States, 461 U.S. 574 546 Booth v. Maryland, 482 U.S. 496 913 Booth Newspapers, Inc. v. United States, 157 Ct. Cl. 886 216, 222 Boreri v. Fiat S. P. A., 763 F. 2d 17 292 Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485 51, 981 Boston Store of Chicago v. American Graphophone Co., 246 U.S. 8 733 Bourjaily v. United States, 483 U.S. 171 687, 691 Bowen v. American Hospital Assn., 476 U.S. 610 435 Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667 542 Bowen v. Owens, 476 U.S. 340 373 Bowen v. Roy, 476 U.S. 693 448-450, 452, 453, 456, 469-472 Bowles v. Willingham, 321 U.S. 503 12, 13 Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281 107 Bowsher v. Synar, 478 U.S. 714 706, 712 Boys Markets, Inc. v. Retail Clerks, 398 U.S. 235 618, 619 Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484 618 Brady v. Maryland, 373 U.S. 83 1025-1028 Britt v. North Carolina, 404 U.S. 226 72 Page Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S. 1 723 Brockett v. Spokane Arcades, Inc., 472 U.S. 491 141 Brown v. Herald Co., 464 U.S. 928 932, 944, 957, 975, 1004 Brown v. Illinois, 422 U.S. 590 943 Brown v. INS, 249 U.S. App. D. C. 333 110 Brushaber v. Union Pacific R. Co., 240 U.S. 1 522 Budinich v. Becton Dickinson & Co., 807 F. 2d 155 267 Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89 414 Burnet v. Coronado Oil & Gas Co., 285 U.S. 393 517, 518, 522, 619 Burns v. Nimmo, 545 F. Supp. 544 544 Burt v. New Jersey, 414 U.S. 938 42 Busch’s Estate v. Ferrell-Duncan Clinic, Inc., 700 S. W. 2d 86 483, 486 Caldwell v. Mississippi, 472 U.S. 320 918, 919, 945-947 Caldwell & Son, Inc. v. United States ex rel. John H. Moon & Sons, Inc., 407 F. 2d 21 285 Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 499 California Coastal Comm’n v. Granite Rock Co., 480 U.S. 572 300, 309 California Federal Savings & Loan Assn. v. Guerra, 479 U.S. 272 710 Cameron v. Johnson, 390 U.S. 611 332 Campbell Taggart, Inc. v. United States, 744 F. 2d 442 216 Cannon v. University of Chicago, 441 U.S. 677 546 Carey v. Brown, 447 U.S. 455 317, 318, 332 LIV TABLE OF CASES CITED Page Carpenter v. United States, 484 U.S. 19 231 Carroll v. United States, 16 F. 2d 951 770 Carson v. American Brands, Inc., 450 U.S. 79 288 Case v. Los Angeles Lumber Products Co., 308 U.S. 106 201-205 Catalano, Inc. v. Target Sales, Inc., 446 U.S. 643 734 Catlin v. United States, 324 U.S. 229 275 Celebrezze v. Sparks, 342 F. 2d 286 76, 78, 79 Cement Mfrs. Protective Assn, v. United States, 268 U.S. 588 727 Central Hudson Gas & Electric Corp. v. Public Service Comm’n of N. Y., 447 U.S. 557 981 Central State Griffin Memorial Hospital v. Reed, 493 P. 2d 815 480 Cemuto, Inc. v. United Cabinet Corp., 595 F. 2d 164 720, 730, 742, 743, 745, 746 Chae Kim Ro v. INS, 670 F. 2d 114 109 Chalaby v. Driskell, 237 Ore. 245 483 Chambers v. Florida, 309 U.S. 227 909 Chandler v. Judicial Council of Tenth Circuit, 398 U.S. 74 713 Chaplinsky v. New Hampshire, 315 U.S. 568 56 Chapman v. California, 386 U.S. 18 36, 42 Chapman v. International Ladies’ Garment Workers’ Union, 401 F. 2d 626 286 Charles v. Daley, 799 F. 2d 343 267 Charleston Federal Savings & Loan Assn. v. Alderson, 324 U.S. 182 84 Charlotte v. Firefighters, 426 U.S. 283 370 Page Chauffeurs, Teamsters & Helpers, Local 765 v. Stroehmann Bros. Co., 625 F. 2d 1092 1039 Chaunt v. United States, 364 U.S. 350 763, 765, 768, 769, 771, 772, 785-787, 790, 791, 802 Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 403, 574, 603 Chiarella v. United States, 445 U.S. 222 231 Chicago Bd. of Trade v. United States, 246 U.S. 231 754 Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226 19 Chong v. Director, USIA, 821 F. 2d 171 941 Christensen Engineering Co., In re, 194 U.S. 458 634 Cities of Campbell v. FERC, 248 U.S. App. D. C. 267 107 City. See name of city. City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 319 Clay v. Secretary of Health and Human Services, 823 F. 2d 679 75 Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 375, 376, 383 Cobbledick v. United States, 309 U.S. 323 275 Coe v. Armour Fertilizer Works, 237 U.S. 413 87 Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 275, 276, 291, 292 Colautti v. Franklin, 439 U.S. 379 778 Collector v. Day, 11 Wall. 113 517, 518, 522 Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 273, 276- 278, 282, 285, 289-291 Columbia Gas Transmission Corp. v. Exclusive Gas Storage Easement, 776 F. 2d 125 295 TABLE OF CASES CITED LV Page Commissioner v. Gillette Motor Co., 364 U.S. 130 217 Commissioner v. McCoy, 484 U.S. 3 269 Commissioner v. P. G. Lake, Inc., 356 U.S. 260 217 Commissioner v. Sunnen, 333 U.S. 591 344 Commissioner of Internal Revenue. See Commissioner. Commonwealth. See also name of Commonwealth. Commonwealth v. Barnett, 471 Pa. 34 942 Commonwealth v. Cohen, 489 Pa. 167 911 Commonwealth v. White, 374 Mass. 132 922 Community Hospital of Roanoke Valley v. Health and Human Services, 770 F. 2d 1257 403 Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 336 Confiscation Cases, 7 Wall. 454 700 CIO v. McAdory, 325 U.S. 472 10 Connick v. Myers, 461 U.S. 138 318 Consolidated Edison Co. v. Public Service Comm’n, 447 U.S. 530 319, 576 Conti v. INS, 780 F. 2d 698 109 Continental Ins. Co. v. Moseley, 100 Nev. 337 484 Continental Investment Corp., In re, 637 F. 2d 1 292 Continental T. V., Inc. v. GTE Sylvania Inc., 433 U.S. 36 618, 723-732, 734, 739, 740, 748, 749, 755 Coopers & Lybrand v. Livesay, 437 U.S. 463 276, 277, 292 Cornelius v. NAACP Legal Defense & Educational Fund, Inc., 473 U.S. 788 322 Com Products Refining Co. v. Commissioner, 350 U.S. 46 214, 216, 219-223 Costello v. United States, 365 U.S. 265 768, 771, 784 Page County. See name of county. Cox v. Louisiana, 379 U.S. 536 331 Crow v. Gullet, 541 F. Supp. 785 474 Crowell v. Benson, 285 U.S. 22 575 Culver City v. Superior Court, 38 Cal. 2d 535 648 Curtis Publishing Co. v. Butts, 388 U.S. 130 51 Daily Herald Co. v. Munro, 838 F. 2d 380 982 Dairy Queen, Inc. v. Wood, 369 U.S. 469 940 Dandridge v. Williams, 397 U.S. 471 370, 372 Danford v. Schwabacher, 488 F. 2d 454 284, 286 Darden v. Wainwright, 477 U.S. 168 33, 943 Deakins v. Monaghan, 484 U.S. 193 387 DeBartolo Corp. v. NLRB, 463 U.S. 147 573, 580 De Beers Consol. Mines, Ltd. v. United States, 325 U.S. 212 289 Defense Logistics Agency v. FLRA, 244 U.S. App. D. C. 22 410 Delaware v. Van Arsdall, 475 U.S. 673 33 Department of Agriculture v. Moreno, 413 U.S. 528 370, 375, 376, 380, 384, 385 Department of Health and Rehabilitative Services, State of Fla. v. Davis, 616 F. 2d 828 398 Deposit Bank v. Frankfort, 191 U.S. 499 1027 Diamond v. Charles, 476 U.S. 54 699 Diematic Mfg. Corp. v. Packaging Industries, Inc., 516 F. 2d 975 284 Dina v. Attorney General, 793 F. 2d 473 941 Dirks v. SEC, 463 U.S. 646 231, 256 LVI TABLE OF CASES CITED Page District of Columbia v. Reed, Cr. No. 2021-67 (D. C. Ct. Gen. Sess.) 317 Dixson v. United States, 465 U.S. 482 597 Dobbins v. Commissioners of Erie County, 16 Pet. 435 517 Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373 724, 732, 733, 744 Donlon Industries v. Forte, 402 F. 2d 935 292 Doyle v. London Guarantee Co., 204 U.S. 599 634 Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 56 Dungan v. Colt Industries, Inc., 532 F. Supp. 832 241 Dunhill of London, Inc. v. Republic of Cuba, 422 U.S. 1005 618 Dunlop v. Bachowski, 421 U.S. 560 542 Duran v. INS, 756 F. 2d 1338 108 Durham v. Kelly, 810 F. 2d 1500 267 Duval Corp. v. Donovan, 650 F. 2d 1051 107 Eddings v. Oklahoma, 455 U.S. 104 925, 927, 929 Edward J. DeBartolo Corp. v. NLRB, 463 U.S. 147 573, 580 Egger’s Estate v. Commissioner, 89 T. C. 726 356 Eisen v. Carlisle & Jacquelin, 417 U.S. 156 269 Eldredge v. Gourley, 505 F. 2d 769 940 Enelow v. New York Life Ins. Co., 293 U.S. 379 279-288 Engle v. Isaac, 456 U.S. 107 35 Ensign v. Pennsylvania, 227 U.S. 592 780 EEOC v. Wyoming, 460 U.S. 226 515 Ernst & Ernst v. Hochfelder, 425 U.S. 185 231, 243, 257, 258, 262 Estate. See name of estate. Page Estelle v. Smith, 451 U.S. 454 45 Estes v. Texas, 381 U.S. 532 910, 911 Ettleson v. Metropolitan Life Ins. Co., 317 U.S. 188 279-288 Examining Bd. v. Flores de Otero, 426 U.S. 572 499 Ex parte. See name of party. Fadhl v. City and County of San Francisco, 741 F. 2d 1163 915 Fausett v. American Resources Management Corp., 542 F. Supp. 1234 252 FCC v. Florida Power Corp., 480 U.S. 245 11, 12 FCC v. League of Women Voters, 468 U.S. 364 269 FCC v. Pacifica Foundation, 438 U.S. 726 55, 56 FERC v. Mississippi, 456 U.S. 742 513, 514, 528, 530 FPC v. Hope Natural Gas Co., 320 U.S. 591 13 FPC v. Texaco Inc., 417 U.S. 380 11 FTC v. Indiana Federation of Dentists, 476 U.S. 447 723 Fedorenko v. United States, 449 U.S. 490 767, 769, 771, 774, 778, 781, 784, 789, 790, 795-797, 800, 804, 808 Fidelity Federal Savings & Loan Assn. v. De la Cuesta, 458 U.S. 141 299 Finzer v. Barry, 255 U.S. App. D. C. 19 317 Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368 276 First English Evangelical Lu- theran Church of Glendale v. County of Los Angeles, 482 U.S. 304 9, 19 First National Bank of Waukesha v. Warren, 796 F. 2d 999 939 Flagg Bros., Inc. v. Brooks, 436 U.S. 149 485, 486 Flamm v. Eberstadt, 814 F. 2d 1169 233-235, 239 TABLE OF CASES CITED LVII Page Ford v. Wainwright, 477 U.S. 399 996, 998 Fox v. Capital Co., 299 U.S. 105 634, 640 Frend v. United States, 69 App. D. C. 281 317 Frink v. Commissioner, 798 F. 2d 106 341 Fulton v. Chicago, R. I. & P. R. Co., 481 F. 2d 326 914 Gano Farms, Inc. v. Estate of Kleweno, 2 Kan. App. 2d 506 483 Garcia v. San Antonio Metropolitan Transit Authority, 469 • U.S. 528 512, 513, 515, 519, 525, 527, 528, 530, 531, 617 Garrison v. Louisiana, 379 U.S. 64 53 Gault, In re, 387 U.S. 1 630 General Building Contractors Assn., Inc. v. Pennsylvania, 458 U.S. 375 620 General Portland, Inc. v. LaFarge Coppee S. A., [1982-1983] CCH Fed. Sec. L. Rep. 1199,148) 240 General Tire & Rubber Co. v. Watkins, 331 F. 2d 192 940 George v. Commissioner, 803 F. 2d 144 341 Gertz v. Robert Welch, Inc., 418 U.S. 323 51, 52 Gibbs v. Consolidated Gas Co., 130 U.S. 396 731 Gibbs v. Estate of Dolan, 146 Ill. App. 3d 203 483 Gillespie v. Oklahoma, 257 U.S. 501 517, 519, 522 Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91 7 Gold v. Johns-Manville Sales Corp., 723 F. 2d 1068 282 Goldberg v. Meridor, 567 F. 2d 209 232 Gompers v. Bucks Stove & Range Co., 221 U.S. 418 631- 633, 635, 636, 638, 640, 646, 647, 649, 700 Gonzales v. United States, 286 F. 2d 118 770 Page Gooding v. Wilson, 405 U.S. 518 330 Goodman v. Lukens Steel Co., 482 U.S. 656 620 Grannis v. Ordean, 234 U.S. 385 999 Gravel v. United States, 408 U.S. 606 712 Graves v. New York ex rel. O’Keefe, 306 U.S. 466 519, 520, 522, 523, 525 Grayned v. Rockford, 408 U.S. 104 330-332 Great Western Broadcasting Corp. v. NLRB, 356 F. 2d 434 579 Greene v. Lindsey, 456 U.S. 444 490 Greenfield v. Heublein, Inc., 742 F. 2d 751 232, 233 Gregg v. Georgia, 428 U.S. 153 916, 919, 924, 930, 943, 945, 949, 971, 982, 994, 1000, 1015, 1017, 1024, 1029, 1030, 1040 Gregg v. State, 667 S. W. 2d 125 942 Greiner v. Lewellyn, 258 U.S. 384 355, 517 Grenada County Supervisors v. Brogden, 112 U.S. 261 575 Griffin v. California, 380 U.S. 609 29-34, 37-45 Griffith v. Kentucky, 479 U.S. 314 1041 Groppi v. Wisconsin, 400 U.S. 505 910 Grossman, Ex parte, 267 U.S. 87 634 Guevara Flores v. INS, 786 F. 2d 1242 104 Gulf Oil Co. v. Bernard, 452 U.S. 89 446 Haffner v. United States, 585 F. Supp. 354 352-354, 356 Hague v. CIO, 307 U.S. 496 318 Hampton v. Mow Sun Wong, 426 U.S. 88 110, 675 Hampton v. United States, 425 U.S. 484 63, 66 LVIII TABLE OF CASES CITED Page Hampton & Co. v. United States, 276 U.S. 394 701 Hansford v. United States, 112 U.S. App. D. C. 359 60 Haroon Barge Co. v. D & G Boat Rentals, Inc., 784 F. 2d 665 267, 270 Harmon, In re, 425 F. 2d 916 290 Harris v. McRae, 448 U.S. 297 369, 373 Harris v. New York, 401 U.S. 222 71 Harris v. Union Electric Co., 787 F. 2d 355 247 Hartford Financial Systems, Inc. v. Florida Software Services, Inc., 712 F. 2d 724 286 Haskins v. United States Dept. of Army, 808 F. 2d 1192 915 Hawkins v. State, 436 So. 2d 44 925, 928, 929 Healy v. James, 408 U.S. 169 367 Helvering v. Gerhardt, 304 U.S. 405 519, 520, 522, 525, 532 Helvering v. Hallock, 309 U.S. 106 619 Helvering v. Horst, 311 U.S. 112 344 Helvering v. Mountain Producers Corp., 303 U.S. 376 522, 523, 532 Helvering v. Powers, 293 U.S. 214 523 Herman & MacLean v. Huddleston, 459 U.S. 375 244, 253 Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707 309, 500 Hines v. Davidowitz, 312 U.S. 52 500 Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136 449, 450, 466, 467, 469, 670, 671, 674-677 Hodel v. Indiana, 452 U.S. 314 11 Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264 10,17-19 Page Hodge v. Muscatine County, 196 U.S. 276 85 Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 329 Holmes v. Bateson, 583 F. 2d 542 240 Honolulu Typographical Union No. 37 v. NLRB, 131 U.S. App. D. C. 1 579 Hooper v. Bernalillo County Assessor, 472 U.S. 612 375 Hooper v. California, 155 U.S. 648 575 Hort v. Commissioner, 313 U.S. 28 217 Houston v. Hill, 482 U.S. 451 329 Howard v. Bowen, 823 F. 2d 185 75 Huckabee Auto Co., In re, 33 B. R. 132 208 Hudson v. Cannon, 529 F. 2d 890 923 Hughes v. Superior Court, 339 U.S. 460 580 Hunt v. Washington Apple Advertising Comm’n, 432 U.S. 333 7 Hunter v. District of Columbia, 47 App. D. C. 406 317 Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 322, 334 H. W. Caldwell & Son, Inc. v. United States ex rel. John H. Moon & Sons, Inc., 407 F. 2d 21 285 Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709 775 Illinois v. Gates, 459 U.S. 1028 618 Illinois Brick Co. v. Illinois, 431 U.S. 720 620 Illinois Gas Co. v. Central Ill. Public Service Co., 314 U.S. 498 305 INS v. Bagamasbad, 429 U.S. 24 105 INS v. Cardoza-Fonseca, 480 U.S. 421 99, 104, 403 INS v. Chadha, 462 U.S. 919 710, 712 TABLE OF CASES CITED LIX Page INS v. Jong Ha Wang, 450 U.S. 139 105, 106, 108, 109 INS v. Phinpathya, 464 U.S. 183 105 INS v. Rios-Pineda, 471 U.S. 444 105 INS v. Stevie, 467 U.S. 407 99, 103, 104 Indiana & Michigan Power Co. v. Public Service Comm’n, 405 Mich. 400 307 Indian Motocycle Co. v. United States, 283 U.S. 570 517, 518, 520 Indian Territory Illuminating Oil Co. v. Oklahoma, 240 U.S. 522 519 Ingraham v. United States, 808 F. 2d 1075 992 In re. See name of party. International Products Corp. v. Koons, 325 F. 2d 403 279 Irvin v. Dowd, 366 U.S. 717 909-911 Jackson Brewing Co. v. Clarke, 303 F. 2d 844 282 Jakobsen v. Massachusetts Port Authority, 520 F. 2d 810 993 James v. Dravo Contracting Co., 302 U.S. 134 520, 522, 532 Jarecki v. G. D. Searle & Co., 367 U.S. 303 778 Jean v. Nelson, 472 U.S. 846 446 Jenkins v. Anderson, 447 U.S. 231 38 Jett v. Dallas Independent School Dist., 798 F. 2d 748 124 Johnson v. Louisiana, 406 U.S. 356 942 Johnson v. Railway Express Agency, Inc., 421 U.S. 454 620 Johnson v. Robison, 415 U.S. 361 540, 542-544 Johnson v. United States, 138 U.S. App. D. C. 174 64 John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543 1039 Jones v. Alfred H. Mayer Co., 392 U.S. 409 620 Page Jones v. Rath Packing Co., 430 U.S. 519 500 J. W. Hampton, Jr., & Co. v. United States, 276 U.S. 394 701 Kaiser Aetna v. United States, 444 U.S. 164 10, 16 Kansas v. Colorado, 485 U.S. 931 956 Karcher v. May, 484 U.S. 72 699 Kardon v. National Gypsum Co., 69 F. Supp. 512 250 Kassab v. INS, 364 F. 2d 806 769 Kay v. David Douglas School Dist., 484 U.S. 1032 971 Keeble v. United States, 412 U.S. 205 63 Kem v. Krueger, 626 S. W. 2d 143 82 Kerr v. United States District Court, 426 U.S. 394 289 Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470 17-19 Kilboum v. Thompson, 103 U.S. 168 712 Kinoy v. District of Columbia, 130 U.S. App. D. C. 290 317 Klapprott v. United States, 335 U.S. 601 783, 784, 791, 792, 794, 795 Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207 734, 742, 747 Knighton v. Watkins, 616 F. 2d 795 268 Kolender v. Lawson, 461 U.S. 352 329 Kotteakos v. United States, 328 U.S. 750 36 Lakeside v. Oregon, 435 U.S. 333 32, 42 Lamb v. Cramer, 285 U.S. 217 634, 646 Landau Boat Co., In re, 8 B. R. 436 208 Langhammer v. Hamilton, 295 F. 2d 642 769 Langley v. Colonial Leasing Co. of New England, 707 F. 2d 1 286 LX TABLE OF CASES CITED Page Lawson & Co. v. Penn Central Co., 456 F. 2d 419 914 LeBlanc v. INS, 715 F. 2d 685 109 Lee v. Ply*Gem Industries, Inc., 193 U.S. App. D. C. 112 285, 287 Lee Pharmaceuticals v. Mishler, 526 F. 2d 1115 940 Lemothe v. Cimbalista, 236 S. W. 2d 681 82 L. E. Whitlock Truck Service, Inc. v. Regal Drilling Co., 333 F. 2d 488 914 Lewis v. Lewis, 667 S. W. 2d 910 82 Lewis v. University of Pittsburgh, 725 F. 2d 910 915 Lincoln Union v. Northwestern Iron & Metal Co., 335 U.S. 525 366 Lindsay v. San Antonio, 821 F. 2d 1103 981 Lindsey v. Normet, 405 U.S. 56 375 Lipton v. Documation, Inc., 734 F. 2d 740 246, 247 List v. Fashion Park, Inc., 340 F. 2d 457 243 Litvak Meat Co. v. Baker, 446 F. 2d 329 914 Lockett v. Ohio, 438 U.S. 586 33, 925, 927, 929 Logan v. Zimmerman Brush Co., 455 U.S. 422 485, 487 Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419 12, 19 Lorillard v. Pons, 434 U.S. 575 211 Los Angeles v. Heller, 475 U.S. 796 118 Louisiana v. Mississippi, 466 U.S. 921 953 Louisiana Boundary Case, 422 U.S. 13 91 Louisiana Public Service Comm’n v. FCC, 476 U.S. 355 500, 501 Louisville Trust Co. v. Louisville, N. A. & C. R. Co., 174 U.S. 674 202 Page LTV Securities Litigation, In re, 88 F. R. D. 134 244,246,256 Lucas v. Alexander, 279 U.S. 573 575 Lucas v. Florida Power & Light Co., 729 F. 2d 1300 267 Lugar v. Edmondson Oil Co., 457 U.S. 922 486 Lukhard v. Reed, 481 U.S. 368 417, 418 Lyng v. Castillo, 477 U.S. 635 364-366, 374 Lyons v. Municipal Court, 75 Cal. App. 3d 829 645 Machinists v. Street, 367 U.S. 740 575 Machinists v. Wisconsin Employment Relations Comm’n, 427 U.S. 132 618 Mack v. Cape Elizabeth School Bd., 553 F. 2d 720 915 Mackey v. United States, 401 U.S. 667 38, 44 Maggio v. Zeitz, 333 U.S. 56 638, 646 Maher v. Roe, 432 U.S. 464 370 Maine v. Superior Court, 68 Cal. 2d 375 911 Mansbach v. Prescott, Ball & Turben, 598 F. 2d 1017 286 Maple Flooring Mfrs. Assn. v. United States, 268 U.S. 563 727 Mar-Lenof La., Inc. v. Parsons- Gilbane, 732 F. 2d 444 287 Martin, In re, 71 Cal. App. 3d 472 648 Martin v. Ohio, 480 U.S. 228 645 Martinez v. Superior Court, 29 Cal. 3d 574 911 Maryland v. Louisiana, 451 U.S. 725 310 Massachusetts v. White, 439 U.S. 280 922 Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 370 Masterson v. Adams, 197 S. W. 2d 154 85 Mathews v. De Castro, 429 U.S. 181 375 TABLE OF CASES CITED LXI Page Mathews v. Eldridge, 424 U.S. 319 85 Mathews v. Lucas, 427 U.S. 495 375 Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 727 Matterhorn, Inc. v. NCR Corp., 763 F. 2d 866 286 Mayo v. United States, 319 U.S. 441 524 McCabe’s Furniture, Inc. v. La-Z-Boy Chair Co., 798 F. 2d 323 720, 752, 757 McCarthy v. Secretary of Health and Human Services, 793 F. 2d 741 75 McCulloch v. Maryland, 4 Wheat. 316 519, 533 McDonald v. Board of Election Comm’rs of Chicago, 394 U.S. 802 549 McGrain v. Daugherty, 273 U.S. 135 710 McGrath v. Zenith Radio Corp., 651 F. 2d 458 232 McLain v. Real Estate Bd. of New Orleans, Inc., 444 U.S. 232 754 McNally v. Hill, 293 U.S. 131 618 McNally v. United States, 483 U.S. 350 732 Mediterranean Enterprises, Inc. v. Ssangyong Corp., 708 F. 2d 1458 286 Mellon-Bank, N. A. v. Prichard- Keang Nam Corp., 651 F. 2d 1244 286 Memphis v. Greene, 451 U.S. 100 620 Memphis Bank & Trust Co. v. Gamer, 459 U.S. 392 526 Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1 488 Mennonite Bd. of Missions v. Adams, 462 U.S. 791 483, 484^91 Metcalf & Eddy v. Mitchell, 269 U.S. 514 518, 532 Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724 308 Page Michaelson v. United States ex rel. Chicago, St. P., M. & O. R. Co., 266 U.S. 42 632, 705 Michelson v. United States, 335 U.S. 469 691 Michigan v. Tucker, 417 U.S. 433 922 Michigan Gas Storage Co. v. Michigan Pub. Serv. Comm’n, 405 Mich. 376 299 Microsoftware Computer Systems, Inc. v. Ontel Corp., 686 F. 2d 531 275, 282 Midway Mfg. Co. v. Omni Video Games, Inc., 668 F. 2d 70 292 Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373 724, 732, 733, 744 Miller v. Drexel Burnham Lambert, Inc., 791 F. 2d 850 286 Mills v. Electric Auto-Lite Co., 396 U.S. 375 243, 245 Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 513 Minor v. United States, 396 U.S. 87 527 Miranda v. Arizona, 384 U.S. 436 922, 923 Mississippi Univ, for Women v. Hogan, 458 U.S. 718 675 Mitchel v. Reynolds, 1 P. Wms. 181 729 Mitchell v. W. T. Grant Co., 416 U.S. 600 85 Modern Glass Specialists, Inc., In re, 42 B. R. 139 208 Moline Properties v. Commis- sioner, 319 U.S. 436 345, 349 Monell v. New York City Dept. of Social Services, 436 U.S. 658 121-123, 125, 127, 131, 137-139, 147, 148, 167, 170, 174, 618 Monitor Patriot Co. v. Roy, 401 U.S. 265 52 Monongahela Navigation Co. v. United States, 148 U.S. 312 20 Monroe v. Blackburn, 476 U.S. 1145; 748 F. 2d 958 1026 Monroe v. Maggio, 444 So. 2d 606 1026 LXII TABLE OF CASES CITED Page Monroe v. Pape, 365 U.S. 167 618 Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752 726, 728-731, 743, 753 Montana v. Hall, 481 U.S. 400 269 Moore v. Illinois Central R. Co., 312 U.S. 630 618 Morgantown v. Royal Ins. Co., 337 U.S. 254 282 Morris, In re, 194 Cal. 63 647 Morrison v. Murray Biscuit Co., 797 F. 2d 1430 720,740, 752,757 Morrison-Knudsen Construction Co. v. Director, OWCP, 461 U.S. 624 546 Morton v. Mancari, 417 U.S. 535 547, 548, 551 Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1 273, 276, 277, 288 Motamedi v. INS, 713 F. 2d 575 109 Motley v. Heckler, 800 F. 2d 1253 75 Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 84, 483-486, 489-491 Mullaney v. Wilbur, 421 U.S. 684 637 Murchison, In re, 349 U.S. 133 911 Murdock v. Ward, 178 U.S. 139 355 Murphy v. Florida, 421 U.S. 794 910 Murray v. The Charming Betsy, 2 Cranch 64 575 Myers v. International Trust Co., 263 U.S. 64 1027 Myers v. United States, 272 U.S. 52 713 Nance v. EPA, 645 F. 2d 701 107 Nascone v. Spudnuts, Inc., 735 F. 2d 763 286 NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 367 NAACP v. Claiborne Hardware Co., 458 U.S. 886 55, 318, 366, 367 Page National Carbide Corp. v. Commissioner, 336 U.S. 422 344, 346-349 National Collegiate Athletic Assn. v. Board of Regents of Univ, of Okla., 468 U.S. 85 723 NLRB v. Amax Coal Co., 453 U.S. 322 770 NLRB v. Bell Aerospace Co., 416 U.S. 267 124 NLRB v. Brown, 380 U.S. 278 414 NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 574, 575, 577, 578 NLRB v. Drivers, 362 U.S. 274 577, 578, 581 NLRB v. Erie Resistor Corp., 373 U.S. 221 574 NLRB v. Fruit Packers, 377 U.S. 58 577, 579, 580, 584, 585 NLRB v. International Assn, of Machinists, 263 F. 2d 796 581 NLRB v. Retail Store Employees, 447 U.S. 607 579, 580 NLRB v. Servette, Inc., 377 U.S. 46 584 NLRB v. Steelworkers, 357 U.S. 357 574 NLRB v. United Rubber, Cork, Linoleum & Plastic Workers, 269 F. 2d 694 581 National League of Cities v. Usery, 426 U.S. 833 514, 515, 529, 617 National Society of Professional Engineers v. United States, 435 U.S. 679 724, 737, 757 Nebbia v. New York, 291 U.S. 502 11, 12 Nevitt, In re, 117 F. 448 633 New England Power Co. v. Asiatic Petroleum Corp., 456 F. 2d 183 286 New Jersey v. T. L. O., 468 U.S. 1214 623 New Orleans v. Dukes, 427 U.S. 297 14 Newport v. Fact Concerts, Inc., 453 U.S. 247 120, 122, 123, 138-140 TABLE OF CASES CITED LXIII Page New York v. Ferber, 458 U.S. 747 331, 333 New York v. United States, 326 U.S. 572 519, 524 New York City v. New York, N. H. & H. R. Co., 344 U.S. 293 487, 488, 491 New York Merchandise Co. v. Stout, 43 Wash. 2d 825 483 New York Times Co. v. Sullivan, 376 U.S. 254 49, 51, 52, 56, 57, 318, 322 Niro v. Fearn Int’l, Inc., 827 F. 2d 173 1039 Nix v. Whiteside, 475 U.S. 157 71, 72 Nixon v. Fitzgerald, 457 U.S. 731 291 North Broward Hospital Dist. v. Bowen, 808 F. 2d 1405 403 Northern Natural Gas Co. v. State Corporation Comm’n of Kan., 372 U.S. 84 300, 301, 310, 502 Northern Pacific R. Co. v. Boyd, 228 U.S. 482 202, 208 Northern Pacific R. Co. v. United States, 356 U.S. 1 724, 739 Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50 110 Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co., 472 U.S. 284 723 Nye v. United States, 313 U.S. 33 634, 638, 646 O’Connor v. United States, 479 U.S. 27 710 Offshore Logistics, Inc. v. Tailentire, 477 U.S. 207 405, 710 Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471 368, 370, 372, 373, 376, 381 Oklahoma City v. Tuttle, 471 U.S. 808 119, 120, 122, 123, 147, 148, 165, 168, 169, 172, 174, 425 Oklahoma Tax Comm’n v. Texas Co., 336 U.S. 342 522, 523 Page Oklahoma Tax Comm’n v. United States, 319 U.S. 598 354 Oliver v. Superior Court, 197 Cal. App. 2d 237 645 Olson v. Paine, Webber, Jack-son & Curtis, Inc., 806 F. 2d 731 285, 287, 288 Olympus Corp. v. United States, 792 F. 2d 315 182, 190, 191 Oregon v. Elstad, 470 U.S. 298 923 Oregon v. Hass, 420 U.S. 714 71 Organization for a Better Austin v. Keefe, 402 U.S. 415 576 Oriel v. Russell, 278 U.S. 358 634, 638 Owen v. City of Independence, 445 U.S. 622 122, 123, 138- 140, 168-170, 172-174 Owens-Illinois, Inc. v. United States District Court, 698 F. 2d 967 940 Pacific Gas & Electric Co. v. Public Utilities Comm’n, 475 U.S. 1 338 Panama R. Co. v. Johnson, 264 U.S. 375 575 Panhandle Eastern Pipe Line Co. v. Public Service Comm’n of Ind., 332 U.S. 507 305 Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U.S. 218 517, 519, 522, 533 Panzirer v. Wolf, 663 F. 2d 365 247 Parsons v. Bedford, 3 Pet. 433 575 Pattern Makers v. NLRB, 473 U.S. 95 574 Pavlidis v. New England Patriots Football Club, Inc., 737 F. 2d 1227 240 Pecht, In re, 57 B. R. 137 205 Peil v. Speiser, 806 F. 2d 1154 242, 244, 247, 255 Pellman v. Cinerama, Inc., 89 F. R. D. 386 251 Pembaur v. Cincinnati, 475 U.S. 469 118, 122-127, 129, 132, 138-141, 143, 144, 148, 166, 168-174 LXIV TABLE OF CASES CITED Page Penfield Co. v. SEC, 330 U.S. 585 633, 646 Penn Central Transportation Co. v. New York City, 438 U.S. 104 20 Pennoyer v. Neff, 95 U.S. 714 85 Pennsylvania R. Co. v. Rychlik, 352 U.S. 480 657, 658 People v. Chagolla, 151 Cal. App. 3d 1045 650 People v. Gendron, 41 Ill. 2d 351 911 People v. Roder, 33 Cal. 3d 491 628 People v. Woody, 61 Cal. 2d 716 667 Pepper v. Miani, 734 F. 2d 1420 285, 286 Permian Basin Area Rate Cases, 390 U.S. 747 11-13 Perrin v. United States, 444 U.S. 37 770 Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U.S. 37 317, 321, 324, 605 Peyton v. Rowe, 391 U.S. 54 618 Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 52 Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672 300 Philpott v. Essex County Welfare Bd., 409 U.S. 413 397, 398 Pine Lake Village Apartment Co., In re, 19 B. R. 819 204 Planned Parenthood Assn./ Chicago Area v. Chicago Transit Authority, 767 F. 2d 1225 982 Plato v. Roudebush, 397 F. Supp. 1295 544 Plummer v. Coler, 178 U.S. 115 355 Plyler v. Doe, 457 U.S. 202 375, 376 Pocket Veto Case, The, 279 U.S. 655 712 Police Dept, of Chicago v. Mosley, 408 U.S. 92 318, 332, 335 Polk County v. Dodson, 454 U.S. 312 122 Page Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429 516- 518, 520, 523, 524, 529, 530 Posadas v. National City Bank, 296 U.S. 497 547 Powell v. McCormack, 395 U.S. 486 712 Prince v. Massachusetts, 321 U.S. 158 465 Proffitt v. Florida, 428 U.S. 242 924 Property Owners Assn. v. North Bergen, 74 N. J. 327 24 Providence Journal Co. v. FBI, 602 F. 2d 1010 695 Public Service Comm’n of N. Y. v. FERC, 259 U.S. App. D. C. 86 301 Pullman-Standard v. Swint, 456 U.S. 273 782 Radzanower v. Touche Ross & Co., 426 U.S. 148 548 Railroad Trainmen v. Virginia, 377 U.S. 1 366 Railway Express Agency, Inc. v. New York, 336 U.S. 106 337 Raney & Sons, Inc. v. Fort Cobb, Okla. Irrigation Fuel Authority, 717 F. 2d 1330 247 Rapid Transit Corp. v. New York, 303 U.S. 573 354 Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 306 Reed v. AAACON Auto Transport, Inc., 637 F. 2d 1302 914 Reed v. Reed, 404 U.S. 71 375, 377 Regan v. Taxation with Representation of Wash., 461 U.S. 540 368, 369 Reid v. Covert, 354 U.S. 1 324 Reid v. Heckler, 735 F. 2d 757 75 Reinecke v. Northern Trust Co., 278 U.S. 339 356 Reiss v. Pan American World Airways, Inc., 711 F. 2d 11 232, 233 Renton v. Playtime Theatres, Inc., 475 U.S. 41 320, 321, 334-338 TABLE OF CASES CITED LXV Page Republic Steel Corp. v. Maddox, 379 U.S. 650 657 Reynolds v. United States, 98 U.S. 145 671 Reynolds Tobacco Co. v. Durham County, 479 U.S. 130 309 Riasati v. INS, 738 F. 2d 1115 109 Rice v. Santa Fe Elevator Corp., 331 U.S. 218 300, 310, 500 Richardson-Merrell Inc. v. Koller, 472 U.S. 424 276 Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 84 Rideau v. Louisiana, 373 U.S. 723 910, 912 R. J. Reynolds Tobacco Co. v. Durham County, 479 U.S. 130 309 Robison v. Johnson, 352 F. Supp. 848 543 Roche v. Evaporated Milk Assn., 319 U.S. 21 289 Rose v. Arkansas State Police, 479 U.S. 1 397 Rose v. Rose, 481 U.S. 619 398 Ross v. A. H. Robins Co., 607 F. 2d 545 247 Ross v. Superior Court, 19 Cal. 3d 899 647 Runyon v. McCrary, 427 U.S. 160 617, 619-622 Russell v. State, 717 S. W. 2d 7 942 Saint Francis College v. Al-Khazraji, 481 U.S. 604 620 St. Luke’s Hospital v. Secretary of Health and Human Services, 810 F. 2d 325 403 St. Mary of Nazareth Hospital Center v. Department of Health and Human Services, 698 F. 2d 1337 403 Sakhavat v. INS, 796 F. 2d 1201 109 Samimi v. INS, 714 F. 2d 992 108, 109 Sandstrom v. Montana, 442 U.S. 510 645 Page Sansone v. United States, 380 U.S. 343 63 Santa Fe Industries, Inc. v. Green, 430 U.S. 462 230, 231, 234, 253 Sawmill Hydraulics, Inc., In re, 72 B. R. 454 204 Schacht v. United States, 398 U.S. 58 319 Schlanger v. Four-Phase Systems Inc., 555 F. Supp. 535 247, 260 Schneider v. Smith, 390 U.S. 17 331 Schneiderman v. United States, 320 U.S. 118 772, 776, 781, 794, 795 School Bd. of Nassau County v. Arline, 480 U.S. 273 548, 549, 551, 554-556, 561, 562, 564 Schroeder v. City of New York, 371 U.S. 208 488 Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384 585 Sealed Case, In re, 267 U.S. App. D. C. 178 705 SEC v. Canandaigua Enterprises Corp., 339 F. 2d 14 208 SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180 230, 234 SEC v. Geon Industries, Inc., 531 F. 2d 39 238, 240 SEC v. Shapiro, 494 F. 2d 1301 240 SEC v. Texas Gulf Sulphur Co., 401 F. 2d 833 229, 235, 238-241, 262 SEC v. United States Realty & Improvement Co., 310 U.S. 434 205 Sedima, S. P. R. L. v. Imrex Co., 473 U.S. 479 546 Sequoyah v. TVA, 620 F. 2d 1159 474 Shanferoke Coal & Supply Corp. v. Westchester Service Corp., 293 U.S. 449 285 LXVI TABLE OF CASES CITED Page Shapiro v. Thompson, 394 U.S. 618 377 Sharaiha v. Hoy, 169 F. Supp. 598 780 Sharp v. Coopers & Lybrand, 649 F. 2d 175 245 Shaw v. Delta Air Lines, Inc., 463 U.S. 85 299, 500 Sheppard v. Maxwell, 384 U.S. 333 910, 911 Sherbert v. Verner, 374 U.S. 398 369, 370, 450-452, 454, 458, 466, 467, 469, 665, 666, 669-671, 674-678 Sherman v. United States, 356 U.S. 369 63, 67 Shillitani v. United States, 384 U.S. 364 630, 634, 635, 637, 638, 640, 646, 647, 649 Shores v. Sklar, 647 F. 2d 462 252, 259 Silkwood v. Kerr-McGee Corp., 464 U.S. 238 300 Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26 8 Sinclair v. United States, 279 U.S. 263 772 Sinclair Refining Co. v. Atkinson, 370 U.S. 195 618 Smith v. Daily Mail Publishing Co., 443 U.S. 97 576 Smith v. Phillips, 455 U.S. 209 921 Sniadach v. Family Finance Corp., 395 U.S. 337 486 Sobol v. Heckler Congressional Committee, 709 F. 2d 129 292 Sorrells v. United States, 287 U.S. 435 62, 65, 67 South Carolina v. Baker, 484 U.S. 973 956 South Carolina v. Regan, 465 U.S. 367 510, 528 South Carolina v. United States, 199 U.S. 437 523 South Dakota v. Dole, 483 U.S. 203 512 Southeastern Community College v. Davis, 442 U.S. 397 548 Page Spaziano v. Florida, 468 U.S. 447 924 Springfield v. Kibbe, 480 U.S. 257 119, 120, 123, 147, 169 Staffin v. Greenberg, 672 F. 2d 1196 232 Standard Chlorine of Del., Inc. v. Leonard, 384 F. 2d 304 286 Standard Oil Co. v. United States, 221 U.S. 1 723, 732 Star City Rebuilders, Inc., In re, 62 B. R. 983 207, 208 State. See also name of State. State v. Beier, 263 N. W. 2d 622 911 State v. Buell, 22 Ohio St. 3d 124 917 State v. Cuevas, 288 N. W. 2d 525 911 State v. Downes, 31 Ore. App. 1183 673 State v. Perry, 502 So. 2d 543 995 State v. Preston, 411 A. 2d 402 922 State v. Winegar, 147 Ariz. 440 942 State ex rel. Central State Griffin Memorial Hospital v. Reed, 493 P. 2d 815 480 State ex rel. Monroe v. Maggio, 444 So. 2d 606 1026 Steadman v. Commissioner, 424 F. 2d 1 216 Steagald v. United States, 451 U.S. 204 170 Steele v. Louisville & Nashville R. Co., 323 U.S. 192 658 Stegall, In re, 64 B. R. 296 209 Sterling v. Cupp, 290 Ore. 611 665 Stevens v. State, 419 So. 2d 1058 925 Stevenson v. United States, 162 U.S. 313 63 Stoll v. Gottlieb, 305 U.S. 165 1027 Stone v. Graham, 449 U.S. 39 677 Stovall v. Denno, 388 U.S. 293 38 Street v. New York, 394 U.S. 576 56 TABLE OF CASES CITED LXVII Page Strickland v. Washington, 466 U.S. 668 73 Sumner v. Shuman, 483 U.S. 66 927 Susquehanna Corp. v. Pan American Sulphur Co., 423 F. 2d 1075 241 Switzerland Cheese Assn., Inc. v. E. Horne’s Market, Inc., 385 U.S. 23 279 Tallahassee Memorial Regional Medical Center v. Bowen, 815 F. 2d 1435 403 Tanner v. United States, 483 U.S. 107 597, 922 Tanner Co. v. Estate of Fessler, 100 Wis. 2d 437 483, 486 Taylor v. Alabama, 457 U.S. 687 943 Taylor v. Illinois, 484 U.S. 400 110 Taylor v. Missouri Pacific R. Co., 794 F. 2d 1082 654 Taylor v. United States, 385 F. Supp. 1035 544 Tedder v. State, 322 So. 2d 908 924-926, 928, 929 Tehan v. United States ex rel. Shott, 382 U.S. 406 44 Texaco, Inc. v. Short, 454 U.S. 516 486, 487, 492, 494 Texas v. New Mexico, 482 U.S. 124 388 Thomas v. Review Bd., Ind. Employment Security Div., 450 U.S. 707 450, 466, 467, 469, 666, 669-671, 674-678 Three Affiliated Tribes of Ft. Berthold Reservation v. Wold Engineering, P. C., 467 U.S. 138 445, 641 Tillman v. Wheaton-Haven Recreation Assn., Inc., 410 U.S. 431 620 Time, Inc. v. Hill, 385 U.S. 374 56 Tinch v. Walters, 765 F. 2d 599 541 Tinch v. Walters, 573 F. Supp. 346 544 Tison v. Arizona, 481 U.S. 137 927 Page T. J. Raney & Sons, Inc. v. Fort Cobb, Okla. Irrigation Fuel Authority, 717 F. 2d 1330 247 Torres-Hernandez v. INS, 812 F. 2d 1262 109 Town. See name of town. Townsend v. Sain, 372 U.S. 293 921, 997 Transcontinental Gas Pipe Line Corp. v. State Oil and Gas Bd. of Miss., 474 U.S. 409 300, 301, 306, 311, 502, 503 Travel Consultants, Inc. v. Travel Management Corp., 125 U.S. App. D. C. 108 286 TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438 231-234, 236, 238, 239, 249, 250 Tully v. Mobil Oil Corp., 455 U.S. 245 501, 502 Tumey v. Ohio, 273 U.S. 510 911 Turner v. Louisiana, 379 U.S. 466 910, 912 Turner v. Murray, 476 U.S. 28 921, 922 Ulster County Court v. Allen, 442 U.S. 140 645 Ultramares Corp. v. Touche, 255 N. Y. 170 262 Union Nacional de Trabajadores, In re, 502 F. 2d 113 940 Union Tool Co. v. Wilson, 259 U.S. 107 638 United Gas Public Service Co. v. Texas, 303 U.S. 123 645 United Savings Assn, of Tex. v. Timbers of Inwood Forest Assoc., Ltd., 484 U.S. 365 490 United States v. Abadi, 706 F. 2d 178 772 United States v. Addyston Pipe & Steel Co., 85 F. 271 729, 736-738, 756, 757 United States v. Agurs, 427 U.S. 97 1026, 1028 United States v. American Trucking Assns., Inc., 310 U.S. 534 710 United States v. Annese, 631 F. 2d 1041 59 LXVIII TABLE OF CASES CITED Page United States v. Arnold, Schwinn & Co., 388 U.S. 365 618, 734 United States v. Atkinson, 297 U.S. 157 35, 37 United States v. Beechum, 582 F. 2d 898 685, 689 United States v. Bressi, 208 F. 369 798 United States v. Buishas, 791 F. 2d 1310 72 United States v. Carolene Products Co., 304 U.S. 144 513 United States v. Casteliana, 488 F. 2d 65 922 United States v. Ceccolini, 435 U.S. 268 464 United States v. City of Detroit, 355 U.S. 466 521, 523 United States v. Colgate & Co., 250 U.S. 300 743 United States v. Corsino, 812 F. 2d 26 770 United States v. Costanzo, 740 F. 2d 251 1038 United States v. County of Fresno, 429 U.S. 452 521, 523 United States v. Davis, 657 F. 2d 637 36 United States v. Demma, 523 F. 2d 981 60, 65 United States v. Dorta, 783 F. 2d 1179 60, 71, 73 United States v. Dothard, 666 F. 2d 498 685 United States v. Downing, 665 F. 2d 404 923 United States v. Duell, 346 U.S. 576 289 United States v. Ebens, 800 F. 2d 1422 684 United States v. Erie R. Co., 235 U.S. 513 596, 597 United States v. Ervin, 436 F. 2d 1331 69 United States v. Fausto, 480 U.S. 904 704 United States v. Frady, 456 U.S. 152 35 Page United States v. General Electric Co., 272 U.S. 476 733 United States v. General Motors Corp., 384 U.S. 127 734, 742, 743, 747-749 United States v. Grace, 461 U.S. 171 318, 322 United States v. Hasting, 461 U.S. 499 29, 32, 38 United States v. Henry, 749 F. 2d 203 60, 63, 71 United States v. Hill, 655 F. 2d 512 59 United States v. Ingraham, 832 F. 2d 229 685, 692 United States v. ICC, 337 U.S. 426 708 United States v. Irwin, 612 F. 2d 1182 1038 United States v. Jackson, 390 U.S. 570 38 United States v. Kimball, 26 F. Cas. 782 606 United States v. Koonce, 485 F. 2d 374 770 United States v. Lardieri, 497 F. 2d 317 770 United States v. Larionoff, 431 U.S. 864 559 United States v. Laut, 17 F. R. D. 31 798 United States v. Lavelle, 243 U.S. App. D. C. 47 685 United States v. Leight, 818 F. 2d 1297 685 United States v. Lemon, 550 F. 2d 467 923 United States v. Leonard, 524 F. 2d 1076 685 United States v. Locke, 471 U.S. 84 354 United States v. Louisiana, 422 U.S. 13 91 United States v. Martin, 773 F. 2d 579 685 United States v. Massey, 437 F. Supp. 843 923 United States v. Mastroianni, 749 F. 2d 900 1037 TABLE OF CASES CITED LXIX Page United States v. Mayo, 705 F. 2d 62 60 United States v. Menasche, 348 U.S. 528 778 United States v. Midland-Ross Corp., 381 U.S. 54 217 United States v. Mine Workers, 330 U.S. 258 647 United States v. Mississippi Tax Comm’n, 421 U.S. 599 526 United States v. Mora, 768 F. 2d 1197 60 United States v. Morales, 788 F. 2d 883 923 United States v. Morrison, 449 U.S. 361 1037 United States v. Munsingwear, Inc., 340 U.S. 36 387 United States v. New Mexico, 455 U.S. 720 521, 523 United States v. Nixon, 418 U.S. 683 701 United States v. O’Brien, 391 U.S. 367 336 United States v. Parke, Davis & Co., 362 U.S. 29 735, 742 United States v. Quinn, 815 F. 2d 153 923 United States v. Riela, 337 F. 2d 986 769 United States v. Rossi, 299 F. 2d 650 769 United States v. Russell, 411 U.S. 423 63, 66, 67, 71 United States v. Rylander, 460 U.S. 752 634, 638, 646 United States v. Scalf, 708 F. 2d 1540 923 United States v. Sheshtawy, 714 F. 2d 1038 797 United States v. Smith, 757 F. 2d 1161 60, 71 United States v. Socony-Vacuum Oil Co., 310 U.S. 150 754 United States v. Sorren, 605 F. 2d 1211 292 United States v. Steele, 727 F. 2d 580 1038 United States v. Thirty-seven Photographs, 402 U.S. 363 331, 333 Page United States v. Thompson, 28 F. Cas. 97 600, 612, 613 United States v. Topco Asso- ciates, Inc., 405 U.S. 596 734, 739, 749 United States v. Tucker, 836 F. 2d 334 107 United States v. Vaccaro, 816 F. 2d 443 685 United States v. Varig Airlines, 467 U.S. 797 141 United States v. Vergara, 714 F. 2d 21 107 United States v. Weber, 818 F. 2d 14 685 United States v. Wells Fargo Bank, 485 U.S. 351 710 United States v. Whitley, 734 F. 2d 1129 59 United States v. Winston, 170 U.S. 522 700 United States v. Young, 470 U.S. 1 29, 33-37, 43 U. S. Army Engineer Center v. FLRA, 762 F. 2d 409 410, 411 United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366 575 United States ex rel. Hudson v. Cannon, 529 F. 2d 890 923 U. S. Postal Service v. Greenburgh Civic Assns., 453 U.S. 114 605 United States Trust Co. v. Helvering, 307 U.S. 57 354, 355 Universal Interpretive Shuttle Corp. v. Washington Metropolitan Area Transit Comm’n, 393 U.S. 186 547 Valley Forge Christian Coll. v. Americans United for Separation of Church & State, 454 U.S. 464 7 Vance v. Bradley, 440 U.S. 93 14 Vasquez v. Hillery, 474 U.S. 254 619 Village. See name of village. Villena v. INS, 622 F. 2d 1352 108 Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 320, 576 LXX TABLE OF CASES CITED Page Vivitar Corp. v. United States, 761 F. 2d 1552 182, 191 Vorphal, In re, 695 F. 2d 318 940 Wainwright v. Booker, 473 U.S. 935 948 Wallace v. Norman Industries, Inc., 467 F. 2d 824 286 Warth v. Seldin, 422 U.S. 490 7 Washington v. United States, 460 U.S. 536 521, 523 Washington Hospital Center v. Service Employees Int’l Union, Local 722, 241 U.S. App. D. C. 186 1039 Waterman v. Cleland, No. 4-77-Civ. 70 (Minn.) 544 W. D. Lawson & Co. v. Penn Central Co., 456 F. 2d 419 914 Weatherford v. Bursey, 429 U.S. 545 1037 Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155 20 Weems v. United States, 217 U.S. 349 36 Weinberger v. Wiesenfeld, 420 U.S. 636 676 Weinstock v. United States, 97 U.S. App. D. C. 365 770 Welty v. State, 402 So. 2d 1159 926 West v. American Telephone & Telegraph Co., 311 U.S. 223 630 West v. Oklahoma Tax Comm’n, 334 U.S. 717 356 Westman Commission Co. v. Hobart Int’l, Inc., 796 F. 2d 1216 720, 757 Weston v. City Council of Charleston, 2 Pet. 449 517, 518 Whalen v. United States, 445 U.S. 684 330 White v. New Hampshire Dept. of Employment Security, 455 U.S. 445 267, 269 White Motor Co. v. United States, 372 U.S. 253 734, 745 Whiting v. Jackson State Univ., 616 F. 2d 116 915 Page Whitlock Truck Service, Inc. v. Regal Drilling Co., 333 F. 2d 488 914 Whittaker v. United States, 108 U.S. App. D. C. 268 69 Widmar v. Vincent, 454 U.S. 263 338 Wiley & Sons, Inc. v. Livingston, 376 U.S. 543 1039 Wilkins v. Erickson, 484 F. 2d 969 290 Will v. Calvert Fire Ins. Co., 437 U.S. 655 713 Will v. United States, 389 U.S. 90 289, 713 Willcuts v. Bunn, 282 U.S.216 517 William B. Tanner Co. v. Estate of Fessler, 100 Wis. 2d 437 483, 486 Williams v. Butler, 802 F. 2d 296 124 Wilson v. Block, 228 U.S. App. D. C. 166 474 Wilson v. Comtech Telecommunications Corp., 648 F. 2d 88 243 Wilson v. United States, 149 U.S. 60 29, 37-42, 45 Wilson v. Zant, 249 Ga. 373 923 Windle Co. v. Commissioner, 65 T. C. 694 217 Winship, In re, 397 U.S. 358 630, 795 Wisconsin v. Yoder, 406 U.S. 205 450, 456, 457, 466, 467, 469, 474, 475, 671 Witherspoon v. Illinois, 391 U.S. 510 912 Witkind’s Estate, In re, 167 Mise. 885 610 Womack v. Eldridge, 215 Va. 338 50 Womack v. United States, 119 U.S. App. D. C. 40 64 Wong Sun v. United States, 371 U.S. 471 942 Wood v. United States, 16 Pet. 342 547 Woodard v. Hutchins, 464 U.S. 377 948 TABLE OF CASES CITED LXXI Page Woods v. Cloyd W. Miller Co., 333 U.S. 138 14 World-Wide Volkswagen Corp, v. Woodson, 444 U.S. 286 85 W. W. Windle Co. v. Commissioner, 65 T. C. 694 217 Wygant v. Jackson Bd. of Ed., 476 U.S. 267 329 Young v. United States ex rel. Vuitton et Fils S. A., 481 U. S. 787 696-706, 708, 709, 713 Young & Co. v. United States District Court, 549 F. 2d 686 251 Zablocki v. Redhail, 434 U.S. 374 364 Page Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 52 Zaimi v. United States, 155 U.S. App. D. C. 66 316 Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100 85 Zidell Explorations, Inc. v. Conval Int’l, Ltd., 719 F. 2d 1465 720 Zobel v. Williams, 457 U.S. 55 375 Zweibon, In re, 184 U.S. App. D. C. 167 940 Zweig v. Hearst Corp., 594 F. 2d 1261 251, 252 CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES AT OCTOBER TERM, 1987 PENNELL et al. v. CITY OF SAN JOSE et al. APPEAL FROM THE SUPREME COURT OF CALIFORNIA No. 86-753. Argued November 10, 1987—Decided February 24, 1988 Under a San Jose, Cal., rent control ordinance (Ordinance), a landlord may automatically raise the annual rent of a tenant in possession by as much as eight percent, but if a tenant objects to a higher increase, a hearing is required to determine whether the landlord’s proposed increase is “reasonable under the circumstances,” and the hearing officer is directed to consider specified factors, including “the hardship to a tenant.” Appellants, an individual landlord and Tri-County Apartment House Owners Association (Association), which represents owners and lessors of real property located in San Jose, filed a state-court action seeking a declaration that the Ordinance, particularly the “tenant hardship” provision, is facially invalid under the Federal Constitution. The court entered judgment on the pleadings in appellants’ favor, and the California Court of Appeal affirmed. However, the California Supreme Court reversed, rejecting appellants’ arguments under the Takings Clause of the Fifth Amendment and the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Held: 1. Appellants have standing to challenge the Ordinance’s constitutionality, even though they did not allege that either the individual appellant or appellant Association’s members have “hardship tenants” who might trigger the Ordinance’s hearing process, or that they have been or will be aggrieved by a hearing officer’s determination that a certain proposed rent increase is unreasonable on the ground of tenant hardship. When standing is challenged on the basis of the pleadings, all material allegations of the complaint must be taken as true, and the complaint must be 1 2 OCTOBER TERM, 1987 Syllabus 485 U. S. construed in favor of the complaining party. Appellants alleged that their properties are subject to the Ordinance, and stated at oral argument that the Association represents “most of the residential unit owners in the city and [has] many hardship tenants.” Thus, the likelihood of enforcement of the Ordinance, with the concomitant probability that a rent will be reduced below what the landlord would otherwise be able to obtain, is a sufficient threat of actual injury to satisfy Art. Ill’s requirement that a plaintiff who challenges a law must demonstrate a realistic danger of sustaining a direct injury as a result of the law’s operation or enforcement. Pp. 6-8. 2. Appellants’ contention that application of the Ordinance’s tenant hardship provision violates the Takings Clause—since reducing, because of tenant hardship, what would otherwise be a “reasonable” rent under the other, objective factors specified in the Ordinance relating to the landlord’s costs or the rental market’s condition, accomplishes a taking and transfer of the landlord’s property to individual hardship tenants—is premature. There is no evidence that the tenant hardship provision has in fact ever been relied upon by a hearing officer to reduce a rent below the figure it would have been set at on the basis of the other specified factors. In addition, the Ordinance does not require that a hearing officer in fact reduce a proposed rent increase on grounds of tenant hardship, but only makes it mandatory that tenant hardship be considered. In takings cases, the constitutionality of laws should not be decided except in an actual factual setting that makes such a decision necessary. Pp. 8-11. 3. The mere provision in the Ordinance that a hearing officer may consider the tenant’s hardship in finally fixing a reasonable rent does not render the Ordinance facially invalid under the Due Process Clause. The Ordinance’s purpose of preventing unreasonable rent increases caused by the city’s housing shortage is a legitimate exercise of appellees’ police powers. Moreover, there is no merit to appellants’ argument that it is arbitrary, discriminatory, or demonstrably irrelevant for appellees to attempt to accomplish the additional goal of reducing the burden of housing costs on low-income tenants by requiring that “hardship to a tenant” be considered in determining the amount of excess rent increase that is “reasonable under the circumstances.” The protection of consumer welfare is a legitimate and rational goal of price or rate regulation. The Ordinance’s scheme represents a rational attempt to accommodate the conflicting interests of protecting tenants from burdensome rent increases while at the same time ensuring that landlords are guaranteed a fair return on their investment. Pp. 11-14. 4. The Ordinance, on its face, does not violate the Equal Protection Clause. Its classification scheme is rationally related to the legitimate PENNELL v. SAN JOSE 3 1 Syllabus purpose of protecting tenants. It is not irrational for the Ordinance to treat landlords differently on the basis of whether or not they have hardship tenants. Pp. 14-15. 42 Cal. 3d 365, 721 P. 2d 1111, affirmed. Rehnquist, C. J., delivered the opinion of the Court, in which Brennan, White, Marshall, Blackmun, and Stevens, JJ., joined. Scalia, J., filed an opinion concurring in part and dissenting in part, in which O’Connor, J., joined, post, p. 15. Kennedy, J., took no part in the consideration or decision of the case. Harry D. Miller argued the cause for appellants. With him on the briefs were Burch Fitzpatrick and Gary E. Rosenberg. Joan R. Gallo argued the cause for appellees. With her on the brief was George Rios. * *Briefs of amici curiae urging reversal were filed for the California Association of Realtors by William M. Pfeiffer; for the National Apartment Association et al. by Jon D. Smock, Wilbur H. Haines III, and Jeffrey J. Gale; for the National Association of Realtors by William D. North; for the National Multi Housing Council by Lawrence B. Simons and Michael E. Fine; for the Rent Stabilization Association of New York City, Inc., et al. by Erwin N. Griswold; and for the Washington Legal Foundation by Daniel J. Popeo, Paul D. Kamenar, and Todd Natkin. Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by John A. Powell, Steven R. Shapiro, Helen Hershkoff, Paul L. Hoffman, and Mark Rosenbaum; for the American Federation of Labor and Congress of Industrial Organizations by Robert M. Weinberg and Laurence Gold; for the Asian Law Alliance et al. by Brenton Rogozen; for the Center for Constitutional Rights by Frank E. Deale; for the National Housing Law Project by David B. Bryson; for the National Institute of Municipal Law Officers by William I. Thornton, Jr., Roger F. Cutler, Roy D. Bates, and William H. Taube; and for the U. S. Conference of Mayors et al. by Benna Ruth Solomon and H. Bartow Farr III. Briefs of amici curiae were filed for the city of Santa Monica et al. by Joseph Lawrence, Karl M. Manheim, Joel M. Levy, Hadassa K. Gilbert, Manuela Albuquerque, Raymond E. Ott, Mary Jo Levinger, Marc G. Hynes, Jayne W. Williams, K. Duane Lyders, Louise H. Renne, Roger T. Picquet, Steven A. Amerikaner, Mark G. Sellers, and John M. Powers; for the Competitive Enterprise Institute by Sam Kazman; and for the National Association of Home Builders et al. by Gus Bauman. 4 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. Chief Justice Rehnquist delivered the opinion of the Court. This case involves a challenge to a rent control ordinance enacted by the city of San Jose, California, that allows a hearing officer to consider, among other factors, the “hardship to a tenant” when determining whether to approve a rent increase proposed by a landlord. Appellants Richard Pennell and the Tri-County Apartment House Owners Association sued in the Superior Court of Santa Clara County seeking a declaration that the ordinance, in particular the “tenant hardship” provisions, are “facially unconstitutional and therefore . . . illegal and void.” The Superior Court entered judgment on the pleadings in favor of appellants, sustaining their claim that the tenant hardship provisions violated the Takings Clause of the Fifth Amendment, as made applicable to the States by the Fourteenth Amendment. The California Court of Appeal affirmed this judgment, 154 Cal. App. 3d 1019, 201 Cal. Rptr. 728 (1984), but the Supreme Court of California reversed, 42 Cal. 3d 365, 721 P. 2d 1111 (1986), each by a divided vote. The majority of the Supreme Court rejected appellants’ arguments under the Takings Clause and the Equal Protection and Due Process Clauses of the Fourteenth Amendment; the dissenters in that court thought that the tenant hardship provisions were a “forced subsidy imposed on the landlord” in violation of the Takings Clause. Id., at 377, 721 P. 2d, at 1119. On appellants’ appeal to this Court we postponed consideration of the question of jurisdiction, 480 U. S. 905 (1987), and now having heard oral argument we affirm the judgment of the Supreme Court of California. The city of San Jose enacted its rent control ordinance (Ordinance) in 1979 with the stated purpose of “alleviat[ing] some of the more immediate needs created by San Jose’s housing situation. These needs include but are not limited to the prevention of excessive and unreasonable rent increases, the alleviation of undue hard PENNELL v. SAN JOSE 5 1 Opinion of the Court ships upon individual tenants, and the assurance to landlords of a fair and reasonable return on the value of their property.” San Jose Municipal Ordinance 19696, §5701.2? At the heart of the Ordinance is a mechanism for determining the amount by which landlords subject to its provisions may increase the annual rent which they charge their tenants. A landlord is automatically entitled to raise the rent of a tenant in possession1 2 by as much as eight percent; if a tenant objects to an increase greater than eight, percent, a hearing is required before a “Mediation Hearing Officer” to determine whether the landlord’s proposed increase is “reasonable under the circumstances.” The Ordinance sets forth a number of factors to be considered by the hearing officer in making this determination, including “the hardship to a tenant.” § 5703.28(c)(7). Because appellants concentrate their attack on the consideration of this factor, we set forth the relevant provision of the Ordinance in full: “5703.29. Hardship to Tenants. In the case of a rent increase or any portion thereof which exceeds the standard set in Section 5703.28(a) or (b), then with respect to such excess and whether or not to allow same to be part of the increase allowed under this Chapter, the Hearing Officer shall consider the economic and financial hardship imposed on the present tenant or tenants of the unit or units to which such increases apply. If, on balance, the Hearing Officer determines that the proposed increase 1 In order to be consistent with the decisions below, we refer throughout this opinion to the sections of the Ordinance as originally designated. We note, however, that the San Jose Municipal Code has recently been recodified and the Ordinance now appears at Chapter 17.23 of the new Code. 2 Under § 5703.3, the Ordinance does not apply to rent or rent increases for new rental units first rented after the Ordinance takes effect, § 5703.3 (a), to the rental of a unit that has been voluntarily vacated, § 5703.3(b)(1), or to the rental of a unit that is vacant as a result of eviction for certain specified acts, § 5703.3(b)(2). 6 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. constitutes an unreasonably severe financial or economic hardship on a particular tenant, he may order that the excess of the increase which is subject to consideration under subparagraph (c) of Section 5703.28, or any portion thereof, be disallowed. Any tenant whose household income and monthly housing expense meets [certain income requirements] shall be deemed to be suffering under financial and economic hardship which must be weighed in the Hearing Officer’s determination. The burden of proof in establishing any other economic hardship shall be on the tenant.” If either a tenant or a landlord is dissatisfied with the decision of the hearing officer, the Ordinance provides for binding arbitration. A landlord who attempts to charge or who receives rent in excess of the maximum rent established as provided in the Ordinance is subject to criminal and civil penalties. Before we turn to the merits of appellants’ contentions we consider the claim of appellees that appellants lack standing to challenge the constitutionality of the Ordinance. The original complaint in this action states that appellant Richard Pennell “is an owner and lessor of 109 rental units in the City of San Jose. ” Appellant Tri-County Apartment House Owners Association (Association) is said to be “an unincorporated association organized for the purpose of representing the interests of the owners and lessors of real property located in the City of San Jose.” App. 2-3. The complaint also states that the real property owned by appellants is “subject to the terms of” the Ordinance. But, appellees point out, at no time did appellants allege that either Pennell or any member of the Association has “hardship tenants” who might trigger the Ordinance’s hearing process, nor did they specifically allege that they have been or will be aggrieved by the determination of a hearing officer that a certain proposed rent increase is unreasonable on the ground of tenant hardship. As appellees put it, “[a]t this point in time, it is speculative” PENNELL v. SAN JOSE 7 1 Opinion of the Court whether any of the Association’s members will be injured in fact by the Ordinance’s tenant hardship provisions. Thus, appellees contend, appellants lack standing under either the test for individual standing, see, e. g., Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U. S. 464, 472 (1982) (individual standing requires an “‘actual injury redressable by the court’”), or the test for associational standing, see Hunt v. Washington Apple Advertising Comm’n, 432 U. S. 333, 343 (1977) (an association has standing on behalf of its members only when “its members would otherwise have standing to sue in their own right”).3 We must keep in mind, however, that “application of the constitutional standing requirement [is not] a mechanical exercise,” Allen n. Wright, 468 U. S. 737, 751 (1984), and that when standing is challenged on the basis of the pleadings, we “accept as true all material allegations of the complaint, and . . . construe the complaint in favor of the complaining party,” Warth v. Seldin, 422 U. S. 490, 501 (1975); see also Gladstone, Realtors n. Village of Bellwood, 441 U. S. 91, 109 (1979). Here, appellants specifically alleged in their complaint that appellants’ properties are “subject to the terms of” the Ordinance, and they stated at oral argument that the Association represents “most of the residential unit owners in the city and [has] many hardship tenants,” Tr. of Oral Arg. 42; see also id., at 7; Reply Brief for Appellants 2. 3 Our cases also impose two additional requirements for associational or representational standing: the interests the organization seeks to protect must be “germane to the organization’s purpose,” Hunt, 432 U. S., at 343, and “neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit,” ibid. See also Automobile Workers v. Brock, ¥17 U. S. 274, 281-282 (1986). Both of these requirements are satisfied here. The Association was “organized for the purpose of representing the interests of the owners and lessors of real property” in San Jose in this lawsuit, App. 3, and the facial challenge that the Association makes to the Ordinance does not require the participation of individual landlords. 8 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. Accepting the truth of these statements, which appellees do not contest, it is not “unadorned speculation,” Simon v. Eastern Kentucky Welfare Rights Organization, 426 U. S. 26, 44 (1976), to conclude that the Ordinance will be enforced against members of the Association. The likelihood of enforcement, with the concomitant probability that a landlord’s rent will be reduced below what he or she would otherwise be able to obtain in the absence of the Ordinance, is a sufficient threat of actual injury to satisfy Art. Ill’s requirement that “[a] plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement.” Babbitt v. Farm Workers, 442 U. S. 289, 298 (1979).4 This said, we recognize that the record in this case leaves much to be desired in terms of specificity for purposes of determining the standing of appellants to challenge this Ordinance. Undoubtedly this is at least in part a reflection of the fact that the case originated in a state court where Art. Ill’s proscription against advisory opinions may not apply. We strongly suggest that in future cases parties litigating in this Court under circumstances similar to those here take pains to supplement the record in any manner necessary to enable us to address with as much precision as possible any question of standing that may be raised. Turning now to the merits, we first address appellants’ contention that application of the Ordinance’s tenant hardship provisions violates the Fifth and Fourteenth Amend- 4 Appellees also argue that Pennell lacks standing individually because in early 1987 he sold the properties he owned at the time the complaint in this action was filed. See Brief for Appellees 8. In a declaration submitted to the Court, Pennell admits that he sold these properties, but states that he recently repurchased and now owns one of the apartment buildings in San Jose that he formerly owned. Declaration of Richard Pennell H 7. That property was and still is “subject to the Ordinance.” Id., *18. Because we conclude that the Association has standing and that therefore we have jurisdiction over this appeal, we find it unnecessary to decide whether Pennell’s sale and repurchase of the property affects his standing here. PENNELL v. SAN JOSE 9 Opinion of the Court merits’ prohibition against taking of private property for public use without just compensation. In essence, appellants’ claim is as follows: §5703.28 of the Ordinance establishes the seven factors that a hearing officer is to take into account in determining the reasonable rent increase. The first six of these factors are all objective, and are related either to the landlord’s costs of providing an adequate rental unit, or to the condition of the rental market. Application of these six standards results in a rent that is “reasonable” by reference to what appellants contend is the only legitimate purpose of rent control: the elimination of “excessive” rents caused by San Jose’s housing shortage. When the hearing officer then takes into account “hardship to a tenant” pursuant to § 5703.28(c)(7) and reduces the rent below the objectively “reasonable” amount established by the first six factors, this additional reduction in the rent increase constitutes a “taking.” This taking is impermissible because it does not serve the purpose of eliminating excessive rents—that objective has already been accomplished by considering the first six factors—instead, it serves only the purpose of providing assistance to “hardship tenants.” In short, appellants contend, the additional reduction of rent on grounds of hardship accomplishes a transfer of the landlord’s property to individual hardship tenants; the Ordinance forces private individuals to shoulder the “public” burden of subsidizing their poor tenants’ housing. As appellants point out, “[i]t is axiomatic that the Fifth Amendment’s just compensation provision is ‘designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’” First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U. S. 304, 318-319 (1987) (quoting Armstrong v. United States, 364 U. S. 40, 49 (I960)). We think it would be premature to consider this contention on the present record. As things stand, there simply is no evidence that the “tenant hardship clause” has in fact ever 10 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. been relied upon by a hearing officer to reduce a rent below the figure it would have been set at on the basis of the other factors set forth in the Ordinance. In addition, there is nothing in the Ordinance requiring that a hearing officer in fact reduce a proposed rent increase on grounds of tenant hardship. Section 5703.29 does make it mandatory that hardship be considered—it states that “the Hearing Officer shall consider the economic hardship imposed on the present tenant”—but it then goes on to state that if “the proposed increase constitutes an unreasonably severe financial or economic hardship ... he may order that the excess of the increase” be disallowed. §5703.29 (emphasis added). Given the “essentially ad hoc, factual inquir[y]” involved in the takings analysis, Kaiser Aetna v. United States, 444 U. S. 164, 175 (1979), we have found it particularly important in takings cases to adhere to our admonition that “the constitutionality of statutes ought not be decided except in an actual factual setting that makes such a decision necessary.” Hodel n. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 294-295 (1981). In Virginia Surface Mining, for example, we found that a challenge to the Surface Mining Control and Reclamation Act of 1977, 91 Stat. 447, 30 U. S. C. §1201 et seq., was “premature,” 452 U. S., at 296, n. 37, and “not ripe for judicial resolution,” id., at 297, because the property owners in that case had not identified any property that had allegedly been taken by the Act, nor had they sought administrative relief from the Act’s restrictions on surface mining. Similarly, in this case we find that the mere fact that a hearing officer is enjoined to consider hardship to the tenant in fixing a landlord’s rent, without any showing in a particular case as to the consequences of that injunction in the ultimate determination of the rent, does not present a sufficiently concrete factual setting for the adjudication of the takings claim appellants raise here. Cf. CIO v. McAdory, 325 U. S. 472, 475-476 (1945) (declining to consider the validity of a state statute when the record did not PENNELL v. SAN JOSE 11 1 Opinion of the Court show that the statute would ever be applied to any of the petitioner’s members).5 Appellants also urge that the mere provision in the Ordinance that a hearing officer may consider the hardship of the tenant in finally fixing a reasonable rent renders the Ordinance “facially invalid” under the Due Process and Equal Protection Clauses, even though no landlord ever has its rent diminished by as much as one dollar because of the application of this provision. The standard for determining whether a state price-control regulation is constitutional under the Due Process Clause is well established: “Price control is ‘unconstitutional ... if arbitrary, discriminatory, or demonstrably irrelevant to the policy the legislature is free to adopt . . . Permian Basin Area Rate Cases, 390 U. S. 747, 769-770 (1968) (quoting Nebbia v. New York, 291 U. S. 502, 539 (1934)). In other contexts we have recognized that the government may intervene in the marketplace to regulate rates or prices that are artificially inflated as a result of the existence of a monopoly or near monopoly, see, e. g., FCC v. Florida Power Corp., 480 U. S. 245, 250-254 (1987) (approving limits on rates charged to cable companies for access to telephone poles); FPC v. Texaco Inc., 417 U. S. 380, 397-398 (1974) (recognizing that federal regulation of the nat- 6 6 For this reason we also decline to address appellants’ contention that application of § 5703.28(c)(7) to reduce an otherwise reasonable rent increase on the basis of tenant hardship violates the Fourteenth Amendment’s due process and equal protection requirements. See Hodel v. Indiana, 452 U. S. 314, 335-336 (1981) (dismissing as “premature” a due process challenge to the civil penalty provision of the Surface Mining Act because “appellees have made no showing that they were ever assessed civil penalties under the Act, much less that the statutory prepayment requirement was ever applied to them or caused them any injury”). Appellants and several amici also argue that the Ordinance’s combination of lower rents for hardship tenants and restrictions on a landlord’s power to evict a tenant amounts to a physical taking of the landlord’s property. We decline to address this contention not only because it was raised for the first time in this Court, but also because it, too, is premised on a hearing officer’s actually granting a lower rent to a hardship tenant. 12 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. ural gas market was in response to the threat of monopoly pricing), or a discrepancy between supply and demand in the market for a certain product, see, e. g., Nebbia v. New York, supra, at 530, 538 (allowing a minimum price for milk to offset a “flood of surplus milk”). Accordingly, appellants do not dispute that the Ordinance’s asserted purpose of “prevent-[ing] excessive and unreasonable rent increases” caused by the “growing shortage of and increasing demand for housing in the City of San Jose,” §5701.2, is a legitimate exercise of appellees’ police powers.6 Cf. Block v. Hirsh, 256 U. S. 135, 156 (1921) (approving rent control in Washington, D. C., on the basis of Congress’ finding that housing in the city was “monopolized”). They do argue, however, that it is “arbitrary, discriminatory, or demonstrably irrelevant,” Permian Basin Area Rate Cases, supra, at 769-770, for appellees to attempt to accomplish the additional goal of reducing the burden of housing costs on low-income tenants by requiring that “hardship to a tenant” be considered in determining the amount of excess rent increase that is “reasonable under the circumstances” pursuant to §5703.28? As appellants put it, “[t]he objective of alleviating individual tenant hardship is . . . not a ‘policy the legislature is free to adopt’ in a rent control ordinance.” Reply Brief for Appellants 16. 6 7 6 Appellants do not claim, as do some amici, that rent control is per se a taking. We stated in Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419 (1982), that we have “consistently affirmed that States have broad power to regulate housing conditions in general and the landlordtenant relationship in particular without paying compensation for all economic injuries that such regulation entails.” Id., at 440 (citing, inter alia, Bowles v. Willingham, 321 U. S. 503, 517-518 (1944)). And in FCC v. Florida Power Corp., 480 U. S. 245 (1987), we stated that “statutes regulating the economic relations of landlords and tenants are not per se takings.” Id., at 252. Despite amici’s urgings, we see no need to reconsider the constitutionality of rent control per se. 7 As we noted above, see n. 5, supra, to the extent that appellants’ due process argument is based on the claim that the Ordinance forces landlords to subsidize individual tenants, that claim is premature and not presented by the facts before us. PENNELL v. SAN JOSE 13 1 Opinion of the Court We reject this contention, however, because we have long recognized that a legitimate and rational goal of price or rate regulation is the protection of consumer welfare. See, e. g., Permian Basin Area Rate Cases, supra, at 770; FPC v. Hope Natural Gas Co., 320 U. S. 591, 610-612 (1944) (“The primary aim of [the Natural Gas Act] was to protect consumers against exploitation at the hands of natural gas companies”). Indeed, a primary purpose of rent control is the protection of tenants. See, e. g., Bowles v. Willingham, 321 U. S. 503, 513, n. 9 (1944) (one purpose of rent control is “to protect persons with relatively fixed and limited incomes, consumers, wage earners . . . from undue impairment of their standard of living”). Here, the Ordinance establishes a scheme in which a hearing officer considers a number of factors in determining the reasonableness of a proposed rent increase which exceeds eight percent and which exceeds the amount deemed reasonable under either § 5703.28(a) or § 5703.28(b). The first six factors of § 5703.28(c) focus on the individual landlord—the hearing officer examines the history of the premises, the landlord’s costs, and the market for comparable housing. Section 5703.28(c)(5) also allows the landlord to bring forth any other financial evidence—including presumably evidence regarding his own financial status—to be taken into account by the hearing officer. It is in only this context that the Ordinance allows tenant hardship to be considered and, under §5703.29, “balance[d]” with the other factors set out in § 5703.28(c). Within this scheme, § 5703.28(c) represents a rational attempt to accommodate the conflicting interests of protecting tenants from burdensome rent increases while at the same time ensuring that landlords are guaranteed a fair return on their investment. Cf. Bowles v. Willingham, supra, at 517 (considering, but rejecting, the contention that rent control must be established “landlord by landlord, as in the fashion of utility rates”). We accordingly find that the Ordinance, which so carefully considers both the individual circumstances of the landlord and 14 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. the tenant before determining whether to allow an additional increase in rent over and above certain amounts that are deemed reasonable, does not on its face violate the Fourteenth Amendment’s Due Process Clause.8 We also find that the Ordinance does not violate the Amendment’s Equal Protection Clause. Here again, the standard is deferential; appellees need only show that the classification scheme embodied in the Ordinance is “rationally related to a legitimate state interest.” New Orleans v. Dukes, 427 U. S. 297, 303 (1976). As we stated in Vance n. Bradley, 440 U. S. 93 (1979), “we will not overturn [a statute that does not burden a suspect class or a fundamental interest] unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature’s actions were irrational.” Id., at 97. In light of our conclusion above that the Ordinance’s tenant hardship provisions are designed to serve the legitimate purpose of protecting tenants, we can hardly conclude that it is irrational for the Ordinance to treat certain landlords differently on the basis of whether or not they have hardship tenants. The Ordinance distinguishes between landlords because doing so furthers the purpose of ensuring that individual tenants do not suffer “unreasonable” hardship; it would be inconsistent to state that hardship is a legitimate factor to be considered but then hold that appellees could not tailor the Ordinance so that only legitimate hardship cases are redressed. Cf. Woods v. Cloyd W. Miller Co., 333 U. S. 138, 145 (1948) 8 The consideration of tenant hardship also serves the additional purpose, not stated on the face of the Ordinance, of reducing the costs of dislocation that might otherwise result if landlords were to charge rents to tenants that they could not afford. Particularly during a housing shortage, the social costs of the dislocation of low-income tenants can be severe. By allowing tenant hardship to be considered under § 5703.28(c), the Ordinance enables appellees to “fine tune” their rent control to take into account the risk that a particular tenant will be forced to relocate as a result of a proposed rent increase. PENNELL v. SAN JOSE 15 1 Opinion of Scalia, J. (Congress “need not control all rents or none. It can select those areas or those classes of property where the need seems the greatest”). We recognize, as appellants point out, that in general it is difficult to say that the landlord “causes” the tenant’s hardship. But this is beside the point—if a landlord does have a hardship tenant, regardless of the reason why, it is rational for appellees to take that fact into consideration under §5703.28 of the Ordinance when establishing a rent that is “reasonable under the circumstances.” For the foregoing reasons, we hold that it is premature to consider appellants’ claim under the Takings Clause and we reject their facial challenge to the Ordinance under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The judgment of the Supreme Court of California is accordingly Affirmed. Justice Kennedy took no part in the consideration or decision of this case. Justice Scalia, with whom Justice O’Connor joins, concurring in part and dissenting in part. I agree that the tenant hardship provision of the Ordinance does not, on its face, violate either the Due Process Clause or the Equal Protection Clause of the Fourteenth Amendment. I disagree, however, with the Court’s conclusion that appellants’ takings claim is premature. I would decide that claim on the merits, and would hold that the tenant hardship provision of the Ordinance effects a taking of private property without just compensation in violation of the Fifth and Fourteenth Amendments. I Appellants contend that any application of the tenant hardship provision of the San Jose Ordinance would effect an uncompensated taking of private property because that provision does not substantially advance legitimate state interests and because it improperly imposes a public burden on individ 16 OCTOBER TERM, 1987 Opinion of Scalia, J. 485 U. S. ual landlords. I can understand how such a claim—that a law applicable to the plaintiffs is, root and branch, invalid— can be readily rejected on the merits, by merely noting that at least some of its applications may be lawful. But I do not understand how such a claim can possibly be avoided by considering it “premature.” Suppose, for example, that the feature of the rental ordinance under attack was a provision allowing a hearing officer to consider the race of the apartment owner in deciding whether to allow a rent increase. It is inconceivable that we would say judicial challenge must await demonstration that this provision has actually been applied to the detriment of one of the plaintiffs. There is no difference, it seems to me, when the facial, root-and-branch challenge rests upon the Takings Clause rather than the Equal Protection Clause. The Court confuses the issue by relying on cases, and portions of cases, in which the Takings Clause challenge was not (as here) that the law in all its applications took property without just compensation, but was rather that the law’s application in regulating the use of particular property so severely reduced the value of that property as to constitute a taking. It is in that context, and not (as the Court suggests) generally, that takings analysis involves an “essentially ad hoc, factual inquir[y],” Kaiser Aetna v. United States, 444 U. S. 164, 175 (1979). We said as much less than a year ago, and it is surprising that we have so soon forgotten: “In addressing petitioners’ claim we must not disregard the posture in which this case comes before us. The District Court granted summary judgment to respondents only on the facial challenge to the Subsidence Act. The court explained that ‘. . . the only question before this court is whether the mere enactment of the statutes and regulations constitutes a taking. ’. . . “The posture of the case is critical because we have recognized an important distinction between a claim that the mere enactment of a statute constitutes a taking and PENNELL v. SAN JOSE 17 1 Opinion of Scalia, J. a claim that the particular impact of government action on a specific piece of property requires the payment of just compensation. This point is illustrated by our decision in Hodel n. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264 (1981), in which we rejected a preenforcement challenge to the constitutionality of the Surface Mining Control and Reclamation Act of 1977. . . . The Court [there] explained: “ ‘ “Because appellees” taking claim arose in the context of a facial challenge, it presented no concrete controversy concerning either application of the Act to particular surface mining operations or its effect on specific parcels of land. Thus, the only issue properly before the District Court and, in turn, this Court, is whether the “mere enactment” of the Surface Mining Act constitutes a taking. . . . The test to be applied in considering this facial challenge is straightforward. A statute regulating the uses that can be made of property effects a taking if it “denies an owner economically viable use of his land.” . . . ’ “Petitioners thus face an uphill battle in making a facial attack on the Act as a taking.” Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S. 470, 493-495 (1987). While the battle was “uphill” in Keystone, we allowed it to be fought, and did not declare it “premature.” The same was true of the facial takings challenge in Hodel n. Virginia Surface Mining & Reclamation Assn., Inc., supra. It is remarkable that the Court should point to that case in support of its position, describing the holding as follows: “In Virginia Surface Mining, for example, we found that a challenge to the Surface Mining Control and Reclamation Act. . . was ‘premature,’. . . and ‘not ripe for judi 18 OCTOBER TERM, 1987 Opinion of Scalia, J. 485 U. S. cial resolution,’. . . because the property owners in that case had not identified any property that had allegedly been taken by the Act, nor had they sought administrative relief from the Act’s restrictions on surface mining.” Ante, at 10. But this holding in Virginia Surface Mining applied only to “the taking issue decided by the District Court,” 452 U. S., at 297, which was the issue of the statute’s validity as applied. Having rejected that challenge as premature, the Court then continued (in the language we quoted in Keystone)'. “Thus, the only issue properly before the District Court and, in turn, this Court, is whether the ‘mere enactment’ of the Surface Mining Act constitutes a taking.” 452 U. S., at 295. That issue was not rejected as premature, but was decided on its merits, id., at 295-297, just as it was in Keystone, and as it was before that in Agins n. Tiburon, 447 U. S. 255, 260-263 (1980). In sum, it is entirely clear from our cases that a facial takings challenge is not premature even if it rests upon the ground that the ordinance deprives property owners of all economically viable use of their land—a ground that is, as we have said, easier to establish in an “as-applied” attack. It is, if possible, even more clear that the present facial challenge is not premature, because it does not rest upon a ground that would even profit from consideration in the context of particular application. As we said in Agins, a zoning law “effects a taking if the ordinance does not substantially advance legitimate state interests, ... or denies an owner economically viable use of his land.” Id., at 260. The present challenge is of the former sort. Appellants contend that providing financial assistance to impecunious renters is not a state interest that can legitimately be furthered by regulating the use of property. Knowing the nature and character of the PENNELL v. SAN JOSE 19 Opinion of Sc alia, J. particular property in question, or the degree of its economic impairment, will in no way assist this inquiry. Such factors are as irrelevent to the present claim as we have said they are to the claim that a law effects a taking by authorizing a permanent physical invasion of property. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419 (1982). So even if we were explicitly to overrule cases such as Agins, Virginia Surface Mining, and Keystone, and to hold that a facial challenge will not lie where the issue can be more forcefully presented in an “as-applied” attack, there would still be no reason why the present challenge should not proceed. Today’s holding has no more basis in equity than it does in precedent. Since the San Jose Ordinance does not require any specification of how much reduction in rent is attributable to each of the various factors that the hearing officer is allowed to take into account, it is quite possible that none of the many landlords affected by the Ordinance will ever be able to meet the Court’s requirement of a “showing in a particular case as to the consequences of [the hardship factor] in the ultimate determination of the rent.” Ante, at 10. There is no reason thus to shield alleged constitutional injustice from judicial scrutiny. I would therefore consider appellants’ takings claim on the merits. II The Fifth Amendment of the United States Constitution, made applicable to the States through the Fourteenth Amendment, Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 239 (1897), provides that “private property [shall not] be taken for public use, without just compensation.” We have repeatedly observed that the purpose of this provision is “to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U. S. 40, 49 (1960); see also First English Evangelical Lutheran Church of Glendale v. Los Angeles County, 482 U. S. 20 OCTOBER TERM, 1987 Opinion of Scalia, J. 485 U. S. 304, 318-319 (1987); Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U. S. 155, 163 (1980); Agins v. Tiburon, supra, at 260; Penn Central Transportation Co. v. New York City, 438 U. S. 104, 123 (1978); Monongahela Navigation Co. n. United States, 148 U. S. 312, 325 (1893). Traditional land-use regulation (short of that which totally destroys the economic value of property) does not violate this principle because there is a cause-and-effect relationship between the property use restricted by the regulation and the social evil that the regulation seeks to remedy. Since the owner’s use of the property is (or, but for the regulation, would be) the source of the social problem, it cannot be said that he has been singled out unfairly. Thus, the common zoning regulations requiring subdividers to observe lot-size and set-back restrictions, and to dedicate certain areas to public streets, are in accord with our constitutional traditions because the proposed property use would otherwise be the cause of excessive congestion. The same cause-and-effect relationship is popularly thought to justify emergency price regulation: When commodities have been priced at a level that produces exorbitant returns, the owners of those commodities can be viewed as responsible for the economic hardship that occurs. Whether or not that is an accurate perception of the way a free-market economy operates, it is at least true that the owners reap unique benefits from the situation that produces the economic hardship, and in that respect singling them out to relieve it may not be regarded as “unfair. ” That justification might apply to the rent regulation in the present case, apart from the single feature under attack here. Appellants do not contest the validity of rent regulation in general. They acknowledge that the city may constitutionally set a “reasonable rent” according to the statutory minimum and the six other factors that must be considered by the hearing officer (cost of debt servicing, rental history of the unit, physical condition of the unit, changes in housing serv PENNELL v. SAN JOSE 21 1 Opinion of Scalia, J. ices, other financial information provided by the landlord, and market value rents for similar units). San Jose Municipal Ordinance 19696, § 5703.28(c) (1979). Appellants’ only claim is that a reduction of a rent increase below what would otherwise be a “reasonable rent” under this scheme may not, consistently with the Constitution, be based on consideration of the seventh factor—the hardship to the tenant as defined in §5703.29. I think they are right. Once the other six factors of the Ordinance have been applied to a landlord’s property, so that he is receiving only a reasonable return, he can no longer be regarded as a “cause” of exorbitantly priced housing; nor is he any longer reaping distinctively high profits from the housing shortage. The seventh factor, the “hardship” provision, is invoked to meet a quite different social problem: the existence of some renters who are too poor to afford even reasonably priced housing. But that problem is no more caused or exploited by landlords than it is by the grocers who sell needy renters their food, or the department stores that sell them their clothes, or the employers who pay them their wages, or the citizens of San Jose holding the higher paying jobs from which they are excluded. And even if the neediness of renters could be regarded as a problem distinctively attributable to landlords in general, it is not remotely attributable to the particular landlords that the Ordinance singles out—namely, those who happen to have a “hardship” tenant at the present time, or who may happen to rent to a “hardship” tenant in the future, or whose current or future affluent tenants may happen to decline into the “hardship” category. The traditional manner in which American government has met the problem of those who cannot pay reasonable prices for privately sold necessities—a problem caused by the society at large—has been the distribution to such persons of funds raised from the public at large through taxes, either in cash (welfare payments) or in goods (public housing, publicly subsidized housing, and food stamps). Unless we are to 22 OCTOBER TERM, 1987 Opinion of Scalia, J. 485 U. S. abandon the guiding principle of the Takings Clause that “public burdens . . . should be borne by the public as a whole,” Armstrong, 364 U. S., at 49, this is the only manner that our Constitution permits. The fact that government acts through the landlord-tenant relationship does not magically transform general public welfare, which must be supported by all the public, into mere “economic regulation,” which can disproportionately burden particular individuals. Here the city is not “regulating” rents in the relevant sense of preventing rents that are excessive; rather, it is using the occasion of rent regulation (accomplished by the rest of the Ordinance) to establish a welfare program privately funded by those landlords who happen to have “hardship” tenants. Of course all economic regulation effects wealth transfer. When excessive rents are forbidden, for example, landlords as a class become poorer and tenants as a class (or at least incumbent tenants as a class) become richer. Singling out landlords to be the transferors may be within our traditional constitutional notions of fairness, because they can plausibly be regarded as the source or the beneficiary of the high-rent problem. Once such a connection is no longer required, however, there is no end to the social transformations that can be accomplished by so-called “regulation,” at great expense to the democratic process. The politically attractive feature of regulation is not that it permits wealth transfers to be achieved that could not be achieved otherwise; but rather that it permits them to be achieved “off budget,” with relative invisibility and thus relative immunity from normal democratic processes. San Jose might, for example, have accomplished something like the result here by simply raising the real estate tax upon rental properties and using the additional revenues thus acquired to pay part of the rents of “hardship” tenants. It seems to me doubtful, however, whether the citizens of San Jose would allow funds in the municipal treasury, from wherever derived, to be distributed to a family of four with income as PENNELL v. SAN JOSE 23 1 Opinion of Scalia, J. high as $32,400 a year—the generous maximum necessary to qualify automatically as a “hardship” tenant under the rental Ordinance.* The voters might well see other, more pressing, social priorities. And of course what $32,400-a-year renters can acquire through spurious “regulation,” other groups can acquire as well. Once the door is opened it is not unreasonable to expect price regulations requiring private businesses to give special discounts to senior citizens (no matter how affluent), or to students, the handicapped, or war veterans. Subsidies for these groups may well be a good idea, but because of the operation of the Takings Clause our governmental system has required them to be applied, in general, through the process of taxing and spending, where both economic effects and competing priorities are more evident. That fostering of an intelligent democratic process is one of the happy effects of the constitutional prescription—perhaps accidental, perhaps not. Its essence, however, is simply the unfairness of making one citizen pay, in some fashion other than taxes, to remedy a social problem that is none of his creation. As the Supreme Court of New Jersey said in finding unconstitutional a scheme displaying, among other defects, the same vice I find dispositive here: “A legislative category of economically needy senior citizens is sound, proper and sustainable as a rational classification. But compelled subsidization by landlords *Under the San Jose Ordinance, “hardship” tenants include (though are not limited to) those whose “household income and monthly housing expense meets [sic] the criteria” for assistance under the existing housing provisions of § 8 of the Housing and Community Development Act of 1974, 42 U. S. C. § 1437f (1982 ed. and Supp. III). The United States Department of Housing and Urban Development currently limits assistance under these provisions for families of four in the San Jose area to those who earn $32,400 or less per year. Memorandum from U. S. Dept, of Housing and Urban Development, Assistant Secretary for Housing-Federal Housing Comm’r, Income Limits for Lower Income and Very Low-Income Families Under the Housing Act of 1937 (Jan. 15, 1988). 24 OCTOBER TERM, 1987 Opinion of Scalia, J. 485 U. S. or by tenants who happen to live in an apartment building with senior citizens is an improper and unconstitutional method of solving the problem.” Property Owners Assn. v. North Bergen, 74 N. J. 327, 339, 378 A. 2d 25, 31 (1977). I would hold that the seventh factor in § 5703.28(c) of the San Jose Ordinance effects a taking of property without just compensation. UNITED STATES v. ROBINSON 25 Syllabus UNITED STATES v, ROBINSON CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 86-937. Argued November 3, 1987—Decided February 24, 1988 At respondent’s federal-court jury trial, which resulted in his conviction of counts of mail fraud involving arson-related insurance claims, defense counsel urged several times in his closing argument that the Government had not allowed respondent (who did not testify) to explain his side of the story and had unfairly denied him the opportunity to explain his actions. Out of the jury’s presence, the prosecutor objected to defense counsel’s remarks and contended that the defense had “opened the door” to commenting upon respondent’s failure to testify. The judge agreed and respondent did not object. The prosecutor then, in his rebuttal summation, remarked that respondent “could have taken the stand and explained it to you.” Defense counsel did not object and did not request a cautionary instruction, but the judge admonished the jury that no inference could be drawn from a defendant’s election not to testify. The Court of Appeals reversed respondent’s convictions, holding, inter alia, that the prosecutor’s comment had deprived respondent of a fair trial under the Fifth Amendment. Held: The prosecutor’s comment did not violate respondent’s Fifth Amendment privilege to be free from compulsory self-incrimination. The trial court reasonably interpreted defense counsel’s closing-argument remarks to mean that the Government had not allowed respondent to explain his side of the story either before or during trial. The prosecutor’s statement that respondent could have explained his story to the jury did not, in the light of defense counsel’s comments, infringe upon respondent’s Fifth Amendment rights. Where the prosecutor on his own initiative asks the jury to draw an adverse inference from a defendant’s silence, or to treat the defendant’s silence as substantive evidence of guilt, Griffin v. California, 380 U. S. 609, holds that the privilege against compulsory self-incrimination is violated. But where, as in this case, the prosecutor’s reference to the defendant’s opportunity to testify is a fair response to a claim made by the defendant or his counsel, there is no violation of the privilege. Pp. 30-34. 794 F. 2d 1132, reversed. Rehnquist, C. J., delivered the opinion of the Court, in which White, Stevens, O’Connor, and Scalia, JJ., joined. Blackmun, J., filed an 26 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. opinion concurring in part and dissenting in part, post, p. 34. Marshall, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 37. Kennedy, J., took no part in the consideration or decision of the case. Lawrence S. Robbins argued the cause for the United States. With him on the briefs were Solicitor General Fried, Assistant Attorney General Weld, and Deputy Solicitor General Bryson. Carolou P. Durham argued the cause for respondent. With her on the brief was Bart C. Durham III. Chief Justice Rehnquist delivered the opinion of the Court. During the course of respondent Robinson’s mail fraud trial in the Middle District of Tennessee, his counsel urged in closing argument that the Government had not allowed respondent to explain his side of the story. The prosecutor during his summation informed the jury that respondent “could have taken the stand and explained it to you. . . .” App. 27. We hold that the comment by the prosecutor did not violate respondent’s privilege to be free from compulsory self-incrimination guaranteed by the Fifth Amendment to the United States Constitution. Following a jury trial in the United States District Court for the Middle District of Tennessee, respondent was convicted of two counts of mail fraud, 18 U. S. C. § 1341;1 both counts involved arson-related insurance claims. The evidence at trial showed that respondent leased a truck stop in Guthrie, Kentucky, in 1979. The business deteriorated over the next several months. Two days after respondent increased the insurance coverage on the truckstop an explosion and fire destroyed the premises. A number of unusual 1 Respondent was acquitted on two counts of making false statements to a bank for purposes of obtaining a loan, 18 U. S. C. § 1014, and the District Court dismissed at the close of the evidence two counts of making and possessing a destructive device, 26 U. S. C. § 5861. UNITED STATES v. ROBINSON 27 25 Opinion of the Court circumstances suggested arson. Respondent subsequently submitted an insurance claim of $80,000. Approximately one year later, respondent’s home in Clarksville, Tennessee, was badly damaged by arson an hour after respondent had departed for California in a large truck filled with household furnishings. When interviewed by investigators, respondent denied setting fire to his house and explained that he had removed the household furnishings to take them to his daughter in California. Respondent filed with his insurance company a proof of loss claim of $200,000, including a $106,500 personal property claim. Certain property included in this claim was later discovered by authorities in respondent’s California home. Respondent did not testify at trial. In his closing argument to the jury, the theme of respondent’s counsel was that the Government had breached its “duty to be fair.” Several different times, counsel charged that the Government had unfairly denied respondent the opportunity to explain his actions.2 Counsel concluded by informing the jury that respondent was not required to testify, and that although it would be natural to draw an adverse inference from respond 2 “By the way, all of those statements, I don’t know how many statements we heard of Mr. Robinson, they were all about the arson. Did they ever give him a chance to explain about those sorts of things, about mail fraud? “Did they ever give this man an opportunity in their many, many statements they took at the time to say, ‘Well, I had two bedroom sets.’” App. 18. “The furniture and clothing, all that clothing out on the lawn, . . . ‘What about your clothing?’ They never gave him a chance to explain.” Id., at 19. “Now, would you like to get indicted for that, without the Government being fair, and being able to explain, have him explain before you, members of your own community, rather than before the agents?” Ibid. “Now, here is what the Government, to be fair with the jury, should have done. They should have taken those items in the Kentucky inventory and just proved them. Why let the defendant disprove them, give him an opportunity to explain?” Id., at 21. 28 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. ent’s failure to take the stand, the jury could not and should not do so. Following this closing and out of the presence of the jury, the prosecution objected to the remarks of defense counsel and contended that the defense had “opened the door.” The court agreed, stating: “. . . I will tell you what, the Fifth Amendment ties the Government’s hands in terms of commenting upon the defendant’s failure to testify. But that tying of hands is not putting you into a boxing match with your hands tied behind your back and allowing him to punch you in the face. “That is not what it was intended for and not fair. I will let you say that the defendants had every opportunity, if they wanted to, to explain this to the ladies and gentlemen of the jury.” App. 25. Respondent did not object. Following a short recess, the prosecutor gave his rebuttal summation. He began by stating that the Government had an obligation to “play fair” and had complied with that obligation in this case. Specifically, he stated: “[Defense counsel] has made comments to the extent the Government has not allowed the defendants an opportunity to explain. It is totally unacceptable. “He explained himself away on tape right into an indictment. He explained himself to the insurance investigator, to the extent that he wanted to. “He could have taken the stand and explained it to you, anything he wanted to. The United States of America has given him, throughout, the opportunity to explain.” Id., at 27. Defense counsel did not object to this closing and did not request a cautionary instruction. Nonetheless, the court included in the jury instruction the admonition that “no infer- UNITED STATES v. ROBINSON 29 25 Opinion of the Court ence whatever may be drawn from the election of a defendant not to testify.” Tr. 694. The United States Court of Appeals for the Sixth Circuit reversed respondent’s convictions, finding that the prosecutor’s comment had “deprived the defendant ... of a fair trial under the Fifth Amendment and 18 U. S. C. §3481.”3 716 F. 2d 1095, 1096, 1097 (1983) (citing Griffin v. California, 380 U. S. 609 (1965), and Wilson n. United States, 149 U. S. 60 (1893)). The court held that because the prosecution’s reference to respondent’s failure to testify had been “direct,” it did not matter that it was made in response to remarks by defense counsel. This Court granted certiorari, vacated that judgment of the Court of Appeals, and remanded for reconsideration in light of United States v. Young, 470 U. S. 1 (1985). 470 U. S. 1025 (1985). There we held that improper remarks by the prosecutor—in which he expressed his personal belief that the defendant was guilty—did not constitute reversible error under the standard properly applicable. On remand, a divided panel of the Court of Appeals reinstated its prior judgment. 794 F. 2d 1132 (1986). We granted certiorari, 479 U. S. 1083 (1987), to consider whether the remarks violated the Fifth Amendment,4 and if so, 3 “In trial of all persons charged with the commission of offense against the United States . . . the person charged shall, at his own request, be a competent witness. His failure to make such a request shall not create any presumption against him.” 18 U. S. C. §3481. 4 Concomitant with the protections of the Fifth Amendment are those afforded by § 3481. See n. 3, supra. For many years, the prohibition on adverse comment concerning a defendant’s failure to testify was grounded solely in § 3481. See Wilson v. United States, 149 U. S. 60 (1893). Since that time, however, the scope of the Fifth Amendment has been expanded to encompass in large part the terrain previously occupied solely by § 3481. See Griffin v. California, 380 U. S. 609 (1965). In circumstances such as these, the two provisions are generally construed in a parallel fashion. Id., at 613-614 (quoting a passage from Wilson and concluding: “If the words ‘Fifth Amendment’ are substituted for ‘act’ and for ‘statute,’ the spirit of the Self-Incrimination Clause is reflected”); see also United States v. Hasting, 461 U. S. 499, 504-508 (1983). 30 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. whether the violation constituted plain error. Because we conclude that there was no constitutional error at all, we do not reach the plain-error issue. In Griffin v. California, supra, the defendant, who had not testified, was found guilty by a jury of first-degree murder. The prosecution had emphasized to the jury in closing argument that the defendant, who had been with the victim just prior to her demise, was the only person who could provide information as to certain details related to the murder, and yet, he had “‘not seen fit to take the stand and deny or explain.”’ Id., at 611. In accordance with the California Constitution, the trial court had instructed the jury that although the defendant had a constitutional right not to testify, the jury could draw an inference unfavorable to the defendant as to facts within his knowledge about which he chose not to testify. Id., at 610. This Court reversed the conviction ruling that the prosecutor’s comments and the jury instruction impermissibly infringed upon the defendant’s Fifth Amendment right to remain silent: “[Comment on the refusal to testify] is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly. It is said, however, that the inference of guilt for failure to testify as to facts peculiarly within the accused’s knowledge is in any event natural and irresistible, and that comment on the failure does not magnify that inference into a penalty for asserting a constitutional privilege. What the jury may infer, given no help from the court, is one thing. What it may infer when the court solemnizes the silence of the accused into evidence against him is quite another.” Id., at 614 (citations omitted). The Court said that the Fifth Amendment “forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.” Id., at 615. UNITED STATES v. ROBINSON 31 25 Opinion of the Court We think that the Court of Appeals’ holding in this case rests both upon too broad a reading of Griffin and upon too restrictive a reading of the closing comments of respondent’s counsel. Taking up the second of these points first, we think the reasoning of the opinion of the Court of Appeals necessarily rests on the assumption that the references by respondent’s counsel to the Government’s failure to provide respondent an opportunity to “explain” were directed only to the period during which the offenses were being investigated, and not the trial itself. Respondent understandably mirrors this position in his brief here. While we agree that defense counsel’s remarks could have been interpreted in this manner, we do not think that an appellate court may substitute its reading of ambiguous language for that of the trial court and counsel. The colloquy quoted earlier shows that the trial court, immediately after hearing counsel’s comment, understood them to mean that the Government had not allowed respondent to explain his side of the story either before or during trial. While respondent now contends that this interpretation is incorrect, he did not offer, while the matter was being considered by the trial judge, the explanation which he now supports. If counsel’s remarks were, as respondent now argues, so clearly limited to the pretrial period, we think it unusual, to say the least, that counsel would have stood silently by when the trial court made clear its contrary interpretation. We accept what we regard as a reasonable interpretation of the remarks adopted by the trial court. We hold that the prosecutor’s statement that respondent could have explained to the jury his story did not in the light of the comments by defense counsel infringe upon respondent’s Fifth Amendment rights. The Court of Appeals and respondent apparently take the view that any “direct” reference by the prosecutor to the failure of the defendant to testify violates the Fifth Amendment as construed in Griffin. We decline to give Griffin such a broad reading, because we think such a reading would be quite inconsistent with the 32 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. Fifth Amendment, which protects against compulsory selfincrimination. The Griffin court addressed prosecutorial comment which baldly stated to the jury that the defendant must have known what the disputed facts were, but that he had refused to take the stand to deny or explain them. We think there is considerable difference for purposes of the privilege against compulsory self-incrimination between the sort of comments involved in Griffin and the comments involved in this case. In Baxter n. Palmigiano, 425 U. S. 308, 319 (1976), we stated that “Griffin prohibits the judge and prosecutor from suggesting to the jury that it may treat the defendant’s silence as substantive evidence of guilt.” See also Lakeside n. Oregon, 435 U. S. 333, 338 (1978). In the present case it is evident that the prosecutorial comment did not treat the defendant’s silence as substantive evidence of guilt, but instead referred to the possibility of testifying as one of several opportunities which the defendant was afforded, contrary to the statement of his counsel, to explain his side of the case. Where the prosecutor on his own initiative asks the jury to draw an adverse inference from a defendant’s silence, Griffin holds that the privilege against compulsory self-incrimination is violated. But where as in this case the prosecutor’s reference to the defendant’s opportunity to testify is a fair response to a claim made by defendant or his counsel, we think there is no violation of the privilege. “Under Griffin ... it is improper for either the court or the prosecutor to ask the jury to draw an adverse inference from a defendant’s silence. But I do not believe the protective shield of the Fifth Amendment should be converted into a sword that cuts back on the area of legitimate comment by the prosecutor on the weaknesses in the defense case.” United States v. Hasting, 461 U. S. 499, 515 (1983) (Stevens, J., concurring) (citation omitted). UNITED STATES v. ROBINSON 33 25 Opinion of the Court The principle that prosecutorial comment must be examined in context is illustrated by our treatment of a Fifth Amendment claim in Lockett v. Ohio, 438 U. S. 586 (1978). We quickly dismissed the argument that the prosecutor had violated the defendant’s right to remain silent when he repeatedly remarked that the evidence was uncontradicted. We did not need to decide whether such comment was generally improper, because in that case “Lockett’s own counsel had clearly focused the jury’s attention on her silence, first, by outlining her contemplated defense in his opening statement and, second, by stating to the court and jury near the close of the case, that Lockett would be the "next witness.’” Id., at 595. We concluded: “When viewed against this background, it seems clear that the prosecutor’s closing remarks added nothing to the impression that had already been created by Lockett’s refusal to testify after the jury had been promised a defense by her lawyer and told that Lockett would take the stand.” Ibid.; cf. United States v. Young, 470 U. S. 1 (1985); Darden v. Wainwright, 477 U. S. 168 (1986).5 “[The] central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence, United States v. Nobles, 422 U. S. 225 (1975) . . . .” Delaware v. Van Arsdall, 475 U. S. 673, 681 (1986). To this end it is important that both the defendant and the prosecutor have the opportunity to meet fairly the evidence and arguments of one another. The broad dicta in Griffin to the effect that the Fifth Amendment “forbids . . . comment by the prosecution on the accused’s silence,” 380 U. S., at 615, must be taken in 5 In United States v. Young and Darden v. Wainwright, we concluded that statements by the prosecutor which inflamed the jury, vouched for the credibility of witnesses, or offered the prosecutor’s personal opinion as to the defendant’s guilt were improper, but we held that, in context, those statements did not necessitate reversal. In contrast, a reference to the defendant’s failure to take the witness stand may, in context, be perfectly proper. 34 OCTOBER TERM, 1987 Opinion of Blackmun, J. 485 U. S. the light of the facts of that case. It is one thing to hold, as we did in Griffin, that the prosecutor may not treat a defendant’s exercise of his right to remain silent at trial as substantive evidence of guilt; it is quite another to urge, as defendant does here, that the same reasoning would prohibit the prosecutor from fairly responding to an argument of the defendant by adverting to that silence. There may be some “cost” to the defendant in having remained silent in each situation, but we decline to expand Griffin to preclude a fair response by the prosecutor in situations such as the present one. The judgment of the Court of Appeals is Reversed. Justice Kennedy took no part in the consideration or decision of this case. Justice Blackmun, concurring in part and dissenting in part. I agree with Justice Marshall when he concludes that the prosecutor’s comments constituted error under Griffin v. California, 380 U. S. 609 (1965). I also share his conclusion that the considerations taken into account by the Court in determining that no error occurred should have been weighed, instead, in assessing whether the prosecutor’s error qualified as plain error, requiring reversal despite the absence of a contemporaneous objection. See post, at 42. I write separately, however, because I think the Court of Appeals’ determination that the prosecutor’s error constituted plain error may well be wrong. I fear that the flaws in that court’s plain-error analysis, as I read it, may be attributable to confusion generated by this Court’s recent opinion in United States v. Young, 470 U. S. 1 (1985), and its direction to reconsider the present case in the light of Young. 470 U. S. 1025 (1985). “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” Fed. Rule Crim. Proc. 52(b). “[C]onsiderations UNITED STATES v. ROBINSON 35 25 Opinion of Blackmun, J. of fairness to the court and to the parties and of the public interest in bringing litigation to an end” have led this Court to except from the contemporaneous-objection requirement only errors that are “obvious” or “otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings.” United States v. Atkinson, 297 U. S. 157, 159-160 (1936). See also United States v. Frady, 456 U. S. 152, 163, n. 14 (1982) (plain error “to be used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result”). While this Court has emphasized that the doctrine is to be invoked only rarely, it generally has avoided articulating a strict formula for other courts to follow in applying the doctrine. Cf. Engle n. Isaac, 456 U. S. 107, 135 (1982) (plain-error analysis characterized as “vague inquiry”). In United States v. Young, however, the Court was presented with a lower court’s decision finding plain error which the Court determined had been reached without considering whether the defendant had been prejudiced by the error. In pinpointing where it thought the lower court had gone wrong, this Court broke down the plain-error inquiry into two parts: whether the error “seriously affected ‘substantial rights,’ ” and whether the error “had an unfair prejudicial impact on the jury’s deliberations.” 470 U. S., at 17, n. 14. While any application of the plain-error doctrine necessarily includes some form of prejudice inquiry, the Court’s attempt to isolate that inquiry without giving it any substantive definition may have produced more mischief than clarity. See id., at 36 (Stevens, J., dissenting). The present decision below, I believe, is an example of this mischief. In analyzing whether the prosecutor’s improper remarks at trial constituted plain error, the Court of Appeals tracked Young’s two-pronged analysis: the Court found, first, that the remarks affected a substantial right, and, second, that the effect of the error was not proved, beyond a reasonable doubt, to be harmless. 794 F. 2d 1132, 1137 (1986). In so 36 OCTOBER TERM, 1987 Opinion of Blackmun, J. 485 U. S. dividing the inquiry into these two parts, however, the Court of Appeals appears to have taken the constitutional nature of the error into consideration twice—both in finding the right at issue substantial and in following the lenient standard for prejudice used to determine whether properly preserved constitutional errors are harmless. See Chapman v. California, 386 U. S. 18, 24 (1967) (where court or prosecutor commits constitutional error, reviewing court “must be able to declare a belief that [the error] was harmless beyond a reasonable doubt”). Accounting for the constitutional magnitude of the error is, of course, appropriate. See Weems v. United States, 217 U. S. 349, 362 (1910) (court less reluctant to find plain error “when rights are asserted which are of such high character as to find expression and sanction in the Constitution or bill of rights”). I am troubled, however, by the Court of Appeals’ apparent double counting of the constitutional nature of the error, for it threatens to render meaningless the contemporaneous-objection requirement in the context of constitutional error. Under the Court of Appeals’ analysis, constitutional error, whether or not objected to at trial, always would be subject to the more sensitive prejudice standard set out in Chapman. To clear the confusion reflected in the Court of Appeals’ application of the plain-error standard “in light of Young,” this Court should either continue on the path it started down in Young and formulate a test for plain error that articulates the prejudice standard to be applied,* or, in the alternative, *In formulating that prejudice standard, the Court might look to the standard applied by some Courts of Appeals in assessing whether nonconstitutional errors are harmless, see, e. g., United States v, Davis, 657 F. 2d 637, 640 (CA4 1981) (citing Kotteakos v. United States, 328 U. S. 750, 765 (1946), for the proposition that “[t]he test for harmlessness for nonconstitutional error is whether it is probable that the error could have affected the verdict reached by the particular jury in the particular circumstances of the trial”), or to the standard alluded to in Justice Stevens’ dissent in United States v. Young, 470 U. S. 1, 35, 37 (1985) (plain error UNITED STATES v. ROBINSON 37 25 Marshall, J., dissenting it should make clear, by reasserting the plain-error doctrine’s lack of rigid definition, that its language in Young is not to be interpreted as a test. This latter course may be more true to the doctrine’s purpose of allowing courts to single out the rare case in which allowing a conviction to stand would severely undermine “the fairness, integrity or public reputation of judicial proceedings.” United States v. Atkinson, 297 U. S., at 160. Either course, however, would clarify for other courts their role in determining what errors, unnoticed at trial, warrant reversal. Because “the proper course” to follow “[w]hen we detect legal error in a lower court’s application of the plain-error or harmless-error rules ... is to set forth the appropriate standards and then remand for further proceedings,” United States v. Young, 470 U. S., at 30-31 (opinion concurring in part and dissenting in part), I would vacate the Court of Appeals’ judgment and remand the case after clarifying how the plain-error doctrine is to be applied. Justice Marshall, with whom Justice Brennan joins, dissenting. In practical terms, the erosion of the Griffin rule that the Court today sanctions is modest: the Court’s holding is tailored to address only prosecutorial comments that are “a fair response to a claim made by defendant or his counsel,” ante, at 32. Presumably, defendants and their counsel need only refrain from claiming that the Government denied them an opportunity to testify in order to insulate themselves from prosecutorial comment on the failure to testify. Only such claims are capable of provoking the prosecution to “fairly respond] to an argument of the defendant by adverting to that silence.” Ante, at 34. But however slight the impact of today’s decision, the Court’s faithlessness to the bright-line rules of Griffin v. California, 380 U. S. 609 (1965), and Wil where error “obviously prejudicial,” and prejudice of sufficient degree to warrant reversal). 38 OCTOBER TERM, 1987 Marshall, J., dissenting 485 U. S. son v. United States, 149 U. S. 60 (1893), is unsettling and unwarranted. I therefore dissent. The Court styles its decision as a refusal to expand the rule of Griffin. It rejects as unduly broad respondent’s reading of Griffin to prohibit any direct reference by the prosecutor to the defendant’s failure to testify. But Griffin lays down exactly this prohibition, and it does so in no uncertain terms. The final words of the opinion in Griffin read: “We . . . hold that the Fifth Amendment . . . forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.” 380 U. S., at 615. See also id., at 614, n. 5 (“Our decision today [is] that the Fifth Amendment prohibits comment on the defendant’s silence”). We repeatedly have recognized the categorical nature of the Griffin rule in subsequent decisions.1 Respondent’s position thus represents a straightforward and orthodox reading of the controlling law. Moreover, because this case involves a federal prosecution, the prosecutor’s comments must also satisfy the statutory requirements of 18 U. S. C. §3481, which we construed in Wilson v. United States, supra. Wilson’s longstanding prohibition on prosecutorial comment is, if anything, more plainly categorical than the rule set down in Griffin: “To pre- *See, e. g., United States v. Hasting, 461 U. S. 499, 507 (1983) {Griffin “interpreted the Fifth Amendment guarantee against self-incrimination to mean that comment on the failure to testify was an unconstitutional burden on the basic right”); Jenkins v. Anderson, 447 U. S. 231, 235 (1980) {Griffin “prevents the prosecution from commenting on the silence of a defendant who asserts the right” not to testify); Mackey v. United States, 401 U. S. 667, 673 (1971) {“Griffin . . . construed the Fifth Amendment to forbid comment on defendants’ failure to testify, thereby removing a burden from the exercise of the privilege against compulsory self-incrimination and further implementing its purpose”); United States v. Jackson, 390 U. S. 570, 583, n. 25 (1968) (In Griffin, “the Court held that comment on a defendant’s failure to testify imposes an impermissible penalty on the exercise of the right to remain silent at trial”); Stovall v. Denno, 388 U. S. 293, 300 (1967) (referring to the “no comment rule of Griffin”). UNITED STATES v. ROBINSON 39 25 Marshall, J., dissenting vent [any adverse presumption from the defendant’s failure to testify,] comment, especially hostile comment, upon such failure must necessarily be excluded from the jury. The minds of the jurors can only remain unaffected from this circumstance by excluding all reference to it.” 149 U. S., at 65 (emphasis added). The statement by the prosecutor in this case that respondent “could have taken the stand and explained it to you” is undeniably a comment on respondent’s exercise of his constitutional right not to testify. The statement thus violated the statutory rule of Wilson as well as the constitutional standard of Griffin. The underpinnings of today’s decision are difficult to discern. The Court freely offers its conclusion that “[w]e think there is considerable difference . . . between the sort of comments involved in Griffin and the comments involved in this case,” ante, at 32, but it is far less forthcoming with its reasoning. At times, the Court’s opinion appears to flirt with a constitutional distinction under Griffin between prosecutorial comment that invites the jury to treat the defendant’s silence as substantive evidence of guilt and other prosecutorial comment on the failure to testify. No such distinction can be found in the text or the animating principle of Griffin. The passages from Griffin that the Court cites addressed California’s practice of permitting the trial court to instruct the jury that it could draw an unfavorable inference from the accused’s failure to testify. We recognized that “[w]hat the jury may infer, given no help from the court, is one thing. What it may infer when the court solemnizes the silence of the accused into evidence against him is quite another.” Griffin, 380 U. S., at 614. The Griffin opinion suggests no similar distinction with regard to comments by the prosecution. Indeed, its holding explicitly rejects such a distinction: “[T]he Fifth Amendment. . . forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.” Id., at 615 (emphasis added). 40 OCTOBER TERM, 1987 Marshall, J., dissenting 485 U. S. At other points in the opinion, the crux of the Court’s holding appears to be its assumption that the prosecution’s comments were made in response to improper argument from defense counsel. First, the Court’s premise is problematic. Respondent’s counsel could “fairly” have provoked the prosecutorial comment in this case only if he had suggested that the Government had prevented respondent from taking the stand at trial. Respondent maintains, however, that his counsel argued only that the Government had prevented him from explaining his position during its pretrial investigation, not during the trial itself. This interpretation appears from the record to be the most, if not the only, reasonable one.2 More fundamentally, the Court’s suggestion that whether a comment violates Griffin depends on whether it is a response to the defense is muddled. A comment may well be a response to the defense and nevertheless be precisely the kind of statement that our holdings in Griffin and Wilson were designed to eliminate. If, for example, a defendant’s counsel argues at trial that the defendant failed to take the stand in order to protect another person, and the prosecution responds that the true explanation is that the defendant is guilty as sin, the prosecution’s comment responds to the defense, but it nevertheless invites the jury to infer guilt from the defendant’s decision not to testify.3 Such a comment 2 Most of defense counsel’s controversial statements refer outright to the Government’s failure to allow respondent to explain his actions during the preindictment investigation. The balance, although admittedly more ambiguous, are also best seen in that light. Respondent’s argument is nevertheless troublesome, because, as the majority points out, it does not take account of the apparent understanding of the prosecution and trial court. But rather than address this tension in any cogent way, the Court simply “accept[s] what we regard as a reasonable interpretation of the remarks adopted by the trial court.” Ante, at 31. It does so even though the trial court never expressly made this interpretation and the Court of Appeals’ understanding is the more reasonable. 3 Indeed, this hypothetical chain of events bears more than a passing resemblance to this case. In response to counsel’s claim that the Govern UNITED STATES v. ROBINSON 41 25 Marshall, J., dissenting violates Griffin under any reasonable interpretation of that case. The breadth of the categorical bright-line rule of Griffin and Wilson is not a simple matter of convenience or admin-istrability. Rather, it rests on a theory that today’s decision threatens to erode. As the Court explained in Griffin, “comment on the refusal to testify . . . cuts down on the privilege by making its assertion costly.” Griffin, supra, at 614. The commonsensical premise of Griffin and Wilson is that the practice of prosecutorial comment on the failure to testify tends inherently to penalize a defendant for exercising his constitutional right not to take the stand. It is no doubt possible to conceive of a particular comment that would impose no penalty on a particular defendant in the eyes of a particular jury, but, as I argue below, that undertaking properly goes to the harmfulness, rather than the existence, of Griffin error. More importantly, the truly benign comment on the failure to testify is far less frequent than the offhand reference or subtle innuendo that imposes an unmistakable, if not always obvious, cost on the assertion of the Fifth Amendment privilege. Griffin, and Wilson before it, responded to this pervasive threat with a general prophylactic rule. As the author of Griffin explained: “In Griffin ... we held that ment had not given respondent a chance to explain, the prosecution paraded respondent’s failure to testify before the jury: “He could have taken the stand and explained it to you, anything he wanted to.” 716 F. 2d 1095, 1096 (1983). That statement varies only subtly, if at all, from the bald references condemned in Griffin v. California, 380 U. S., at 611, “[t]hese things he has not seen fit to take the stand and deny or explain”—and Wilson v. United States, 149 U. S., at 62, “if I am ever charged with a crime, . . . I will go upon the stand . . . and testify before Heaven to my innocence.” The character of the statement at issue here thus is quite similar to that condemned in Griffin and Wilson. The focus on whether a comment is responsive therefore could sanction a blatant violation of Griffin. This is so because whether a prosecutorial comment imposes a cost on a defendant’s assertion of his Fifth Amendment privilege is not necessarily related to whether the comment is a response to the defense. 42 OCTOBER TERM, 1987 Marshall, J., dissenting 485 U. S. the Fifth Amendment guarantee against self-incrimination prohibits a prosecutor from commenting to the jury upon the defendant’s failure to testify at his trial. Such a practice would place a price on the defendant’s invocation of his constitutional privilege—a price that would seriously undermine the value of that privilege.” Burt v. New Jersey, 414 U. S. 938, 938 (1973) (Douglas, J., dissenting from denial of certiorari). Wilson similarly rejects a case-by-case analysis in favor of a general prophylactic ban: “To prevent such presumption being created, comment, especially hostile comment, upon such practice must necessarily be excluded from the jury.” 149 U. S., at 65. See also Lakeside v. Oregon, 435 U. S. 333, 344 (1978) (StEvens, J., dissenting) (Although the probability that the jury will draw an unfavorable inference from the defendant’s failure to testify “can never be eliminated, Griffin stands for the proposition that the government may not add unnecessarily to the risk taken by a defendant who stands mute”) (footnote omitted). That is not to say that every comment by the prosecution on the defendant’s failure to testify occasions a reversal of an ensuing conviction. This Court recognized as much in Chapman v. California, 386 U. S. 18, 21-24 (1967) (Griffin violation may be harmless error if the court believes beyond a reasonable doubt that the violation did not contribute to the jury’s verdict). My fundamental objection with the Court’s analysis is that it confuses the issue whether a constitutional error has occurred with the analytically distinct issue whether the constitutional error is harmless, or, as in a case like this one where no contemporaneous objection was made, whether the error is plain. The considerations that guide the Court’s opinion may help identify whether Griffin error is reversible, but they should not enter into the analysis whether Griffin error has occurred. Nor do I necessarily dispute the Court’s statement that “prosecutorial comment must be examined in context.” Ante, at 33. I agree that under our precedents the com- UNITED STATES v. ROBINSON 43 25 Marshall, J., dissenting ments in this case may be evaluated against the trial court’s and prosecution’s apparent perception that respondent’s counsel had offered an inaccurate suggestion that the Government had barred his client from testifying at trial. But this Court set out the framework for that evaluation in United States v. Young, 470 U. S. 1 (1985), and we previously indicated that it applied to this case. The prosecutor in Young, in response to unethical argument from defense counsel, interjected personal impressions into his argument to the jury. The Court recognized that the argument was improper but found that it was not plain error meriting reversal: “Viewed in context, the prosecutor’s statements, although inappropriate and amounting to error, were not such as to undermine the fundamental fairness of the trial and contribute to a miscarriage of justice.” Id., at 16. The teaching of Young is that improper argument that viewed in context only “rights the scales” after improper argument from the other side sometimes will not rise to the level of plain error. Id., at 14. In this case, we vacated the Court of Appeals’ first reversal of respondent’s conviction and remanded for reconsideration in light of our intervening opinion in Young. See 716 F. 2d 1095 (1983), vacated and remanded, 470 U. S. 1025 (1985). The obvious premise of that order was that the prosecutor’s comments in this case were error under Griffin, but the Court of Appeals was to determine whether the error was plain in the context of defense counsel’s argument. Thus, we already have recognized that the “context” of an argument is relevant for determining whether it is reversible error, not for determining whether it in fact violates the bright-line standard of Griffin. The Court today muddies Griffin analysis by straying from that distinction. The Court ultimately attempts to justify its decision by an appeal to the truth-finding function of the criminal trial. The Court cites this function as the central purpose of the trial and writes that “it is important that both the defendant and the prosecutor have the opportunity to fairly meet the 44 OCTOBER TERM, 1987 Marshall, J., dissenting 485 U. S. evidence and arguments of one another.” Ante, at 33. This rationale could mean one of two things, neither of which legitimately can support the Court’s holding. First, the Court could mean that the prosecutor’s statements in this case were not error because they aided the jury in its central purpose of determining whether respondent was guilty of mail fraud. This, however, is only another way of admitting that the prosecutor’s comments invited the jury to infer guilt from respondent’s silence, in clear violation of Griffin. If this is the kind of “truth-finding” the Court has in mind, the quick answer to the Court’s concern is that our constitutional scheme presupposes that the exercise of Fifth Amendment rights may make it more difficult to discover whether the defendant is guilty as charged; the impediment to the jury’s truth-finding function that the Court finds irksome is a matter of precious design. See Mackey v. United States, 401 U. S. 667, 673 (1971) (Fifth Amendment “privilege ‘is not an adjunct to the ascertainment of truth,’ but is aimed at serving the complex of values on which it has historically rested”) (citing Tehan n. United States ex rel. Shott, 382 U. S. 406, 416 (1966)). Griffiris ban on prosecutorial comment on the failure to testify may impose a social cost, but the acceptance of this cost is a prized achievement which separates our system from an “‘inquisitorial system of criminal justice.’” Griffin, 380 U. S., at 614. The other meaning that the Court’s appeal to the criminal trial’s truth-finding function could have is that the prosecutor’s comments were not meant to bear on respondent’s guilt but merely made the jury aware that the Government had not barred respondent from taking the stand. Perhaps such a vindication of the Government’s honor and the principles of fair play has its place in the criminal justice system and may be taken into account in evaluating whether a particular constitutional violation is reversible error. In my estimation, however, this interest would rarely be significant enough to UNITED STATES v. ROBINSON 45 25 Marshall, J., dissenting subordinate the defendant’s right to an unfettered exercise of his privilege not to testify. Moreover, this interest can be vindicated by less burdensome alternatives, such as sustaining an objection from the prosecution or perhaps undertaking a separate disciplinary proceeding against a dissembling attorney. But in any event, the Court’s appeal to the truthfinding function is no justification for its determination that the prosecution’s comments were “perfectly proper.” Ante, at 33, n. 5. That conclusion, in fact, is unjustifiable; the prosecution’s comments were not perfectly proper under either Griffin or Wilson. Perhaps they were not reversibly improper, but that, as I have indicated, is a separate question. The Court’s concluding comments reveal a belief that it simply would be unfair not to permit the prosecution to offer a “fair response ... in situations such as the present one.” Ante, at 34. This gut feeling may be the final explanation for today’s decision. But this Court should be more circumspect before bending constitutional principles in the service of what it takes to be the fairer result in an individual case. Whether or not the Court’s adulteration of Griffin and Wilson produces a fairer result here (and there is good reason to believe it does not), it tends to undermine a defendant’s constitutional privilege not to testify. “The Fifth Amendment privilege is ‘as broad as the mischief against which it seeks to guard,’ and the privilege is fulfilled only when a criminal defendant is guaranteed the right ‘to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty ... for such silence.’” Estelle v. Smith, 451 U. S. 454, 467-468 (1981) (citations omitted; footnote omitted). As the Court itself recognizes, see ante, at 34, the comments in this case imposed a penalty on respondent for his decision not to take the stand. They also ran afoul of the express prohibitions of both Griffin and Wilson. The fair judicial response, rather than validating such comments, should be to reject them as violative of the Fifth Amendment. I dissent. 46 OCTOBER TERM, 1987 Syllabus 485 U. S. HUSTLER MAGAZINE, INC., et al. v. FALWELL CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 86-1278. Argued December 2, 1987—Decided February 24, 1988 Respondent, a nationally known minister and commentator on politics and public affairs, filed a diversity action in Federal District Court against petitioners, a nationally circulated magazine and its publisher, to recover damages for, inter alia, libel and intentional infliction of emotional distress arising from the publication of an advertisement “parody” which, among other things, portrayed respondent as having engaged in a drunken incestuous rendezvous with his mother in an outhouse. The jury found against respondent on the libel claim, specifically finding that the parody could not “reasonably be understood as describing actual facts ... or events,” but ruled in his favor on the emotional distress claim, stating that he should be awarded compensatory and punitive damages. The Court of Appeals affirmed, rejecting petitioners’ contention that the “actual malice” standard of New York Times Co. v. Sullivan, 376 U. S. 254, must be met before respondent can recover for emotional distress. Rejecting as irrelevant the contention that, because the jury found that the parody did not describe actual facts, the ad was an opinion protected by the First Amendment to the Federal Constitution, the court ruled that the issue was whether the ad’s publication was sufficiently outrageous to constitute intentional infliction of emotional distress. Held: In order to protect the free flow of ideas and opinions on matters of public interest and concern, the First and Fourteenth Amendments prohibit public figures and public officials from recovering damages for the tort of intentional infliction of emotional distress by reason of the publication of a caricature such as the ad parody at issue without showing in addition that the publication contains a false statement of fact which was made with “actual malice,” i. e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true. The State’s interest in protecting public figures from emotional distress is not sufficient to deny First Amendment protection to speech that is patently offensive and is intended to inflict emotional injury when that speech could not reasonably have been interpreted as stating actual facts about the public figure involved. Here, respondent is clearly a “public figure” for First Amendment purposes, and the lower courts’ finding that the ad parody was not reasonably believable must be accepted. “Outrageous- HUSTLER MAGAZINE v. FALWELL 47 46 Opinion of the Court ness” in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression, and cannot, consistently with the First Amendment, form a basis for the award of damages for conduct such as that involved here. Pp. 50-57. 797 F. 2d 1270, reversed. Rehnquist, C. J., delivered the opinion of the Court, in which Brennan, Marshall, Blackmun, Stevens, O’Connor, and Scalia, JJ., joined. White, J., filed an opinion concurring in the judgment, post, p. 57. Kennedy, J., took no part in the consideration or decision of the case. Alan L. Isaacman argued the cause for petitioners. With him on the briefs was David 0. Carson. Norman Roy Grutman argued the cause for respondent. With him on the brief were Jeffrey H. Daichman and Thomas V. Marino.* Chief Justice Rehnquist delivered the opinion of the Court. Petitioner Hustler Magazine, Inc., is a magazine of nationwide circulation. Respondent Jerry Falwell, a nationally known minister who has been active as a commentator on politics and public affairs, sued petitioner and its publisher, petitioner Larry Flynt, to recover damages for invasion of *Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union Foundation et al. by Harriette K. Dorsen, John A. Powell, and Steven R. Shapiro; for the Association of American Editorial Cartoonists et al. by Roslyn A. Mazer and George Kaufmann; for the Association of American Publishers, Inc., by R. Bruce Rich; for Home Box Office, Inc., by P. Cameron DeVore and Daniel M. Waggoner; for the Law & Humanities Institute by Edward de Grazia; for the Reporters Committee for Freedom of the Press et al. by Jane E. Kirtley, Richard M. Schmidt, David Barr, and J. Laurent Scharff; for Richmond Newspapers, Inc., et al. by Alexander Wellford, David C. Kohler, Rodney A. Smolla, William A. Niese, Jeffrey S. Klein, W. Terry Maguire, and Slade R. Metcalf; and for Volunteer Lawyers for the Arts, Inc., by Irwin Karp and I. Fred Koenigsberg. 48 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. privacy, libel, and intentional infliction of emotional distress. The District Court directed a verdict against respondent on the privacy claim, and submitted the other two claims to a jury. The jury found for petitioners on the defamation claim, but found for respondent on the claim for intentional infliction of emotional distress and awarded damages. We now consider whether this award is consistent with the First and Fourteenth Amendments of the United States Constitution. The inside front cover of the November 1983 issue of Hustler Magazine featured a “parody” of an advertisement for Campari Liqueur that contained the name and picture of respondent and was entitled “Jerry Falwell talks about his first time.” This parody was modeled after actual Campari ads that included interviews with various celebrities about their “first times.” Although it was apparent by the end of each interview that this meant the first time they sampled Campari, the ads clearly played on the sexual double entendre of the general subject of “first times.” Copying the form and layout of these Campari ads, Hustler’s editors chose respondent as the featured celebrity and drafted an alleged “interview” with him in which he states that his “first time” was during a drunken incestuous rendezvous with his mother in an outhouse. The Hustler parody portrays respondent and his mother as drunk and immoral, and suggests that respondent is a hypocrite who preaches only when he is drunk. In small print at the bottom of the page, the ad contains the disclaimer, “ad parody—not to be taken seriously.” The magazine’s table of contents also lists the ad as “Fiction; Ad and Personality Parody.” Soon after the November issue of Hustler became available to the public, respondent brought this diversity action in the United States District Court for the Western District of Virginia against Hustler Magazine, Inc., Larry C. Flynt, and Flynt Distributing Co., Inc. Respondent stated in his complaint that publication of the ad parody in Hustler entitled HUSTLER MAGAZINE v. FALWELL 49 46 Opinion of the Court him to recover damages for libel, invasion of privacy, and intentional infliction of emotional distress. The case proceeded to trial.1 At the close of the evidence, the District Court granted a directed verdict for petitioners on the invasion of privacy claim. The jury then found against respondent on the libel claim, specifically finding that the ad parody could not “reasonably be understood as describing actual facts about [respondent] or actual events in which [he] participated.” App. to Pet. for Cert. Cl. The jury ruled for respondent on the intentional infliction of emotional distress claim, however, and stated that he should be awarded $100,000 in compensatory damages, as well as $50,000 each in punitive damages from petitioners.1 2 Petitioners’ motion for judgment notwithstanding the verdict was denied. On appeal, the United States Court of Appeals for the Fourth Circuit affirmed the judgment against petitioners. Falwell v. Flynt, 797 F. 2d 1270 (1986). The court rejected petitioners’ argument that the “actual malice” standard of New York Times Co. v. Sullivan, 376 U. S. 254 (1964), must be met before respondent can recover for emotional distress. The court agreed that because respondent is concededly a public figure, petitioners are “entitled to the same level of first amendment protection in the claim for intentional infliction of emotional distress that they received in [respondent’s] claim for libel.” 797 F. 2d, at 1274. But this does not mean that a literal application of the actual malice rule is appropriate in the context of an emotional distress claim. In the court’s view, the New York Times decision emphasized the constitutional importance not of the falsity of the statement or the defendant’s disregard for the truth, but of the heightened level of culpability embodied in the requirement of “knowing ... or reckless” conduct. Here, the New York 1 While the case was pending, the ad parody was published in Hustler Magazine a second time. 2 The jury found no liability on the part of Flynt Distributing Co., Inc. It is consequently not a party to this appeal. 50 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. Times standard is satisfied by the state-law requirement, and the jury’s finding, that the defendants have acted intentionally or recklessly.3 The Court of Appeals then went on to reject the contention that because the jury found that the ad parody did not describe actual facts about respondent, the ad was an opinion that is protected by the First Amendment. As the court put it, this was “irrelevant,” as the issue is “whether [the ad’s] publication was sufficiently outrageous to constitute intentional infliction of emotional distress.” Id., at 1276.4 Petitioners then filed a petition for rehearing en banc, but this was denied by a divided court. Given the importance of the constitutional issues involved, we granted certiorari. 480 U. S. 945 (1987). This case presents us with a novel question involving First Amendment limitations upon a State’s authority to protect its citizens from the intentional infliction of emotional distress. We must decide whether a public figure may recover damages for emotional harm caused by the publication of an ad parody offensive to him, and doubtless gross and repugnant in the eyes of most. Respondent would have us find that a State’s interest in protecting public figures from emotional distress is sufficient to deny First Amendment protection to speech that is patently offensive and is intended to inflict emotional injury, even when that speech could not reasonably have been interpreted as stating actual facts about the public figure involved. This we decline to do. At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern. “[T]he 8 Under Virginia law, in an action for intentional infliction of emotional distress a plaintiff must show that the defendant’s conduct (1) is intentional or reckless; (2) offends generally accepted standards of decency or morality; (3) is causally connected with the plaintiff’s emotional distress; and (4) caused emotional distress that was severe. 797 F. 2d, at 1275, n. 4 (citing Womack v. Eldridge, 215 Va. 338, 210 S. E. 2d 145 (1974)). 4 The court below also rejected several other contentions that petitioners do not raise in this appeal. HUSTLER MAGAZINE v. FALWELL 51 46 Opinion of the Court freedom to speak one’s mind is not only an aspect of individual liberty—and thus a good unto itself—but also is essential to the common quest for truth and the vitality of society as a whole.” Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 503-504 (1984). We have therefore been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions. The First Amendment recognizes no such thing as a “false” idea. Gertz v. Robert Welch, Inc., 418 U. S. 323, 339 (1974). As Justice Holmes wrote, “when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market . . . .” Abrams v. United States, 250 U. S. 616, 630 (1919) (dissenting opinion). The sort of robust political debate encouraged by the First Amendment is bound to produce speech that is critical of those who hold public office or those public figures who are “intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.” Associated Press v. Walker, decided with Curtis Publishing Co. v. Butts, 388 U. S. 130, 164 (1967) (Warren, C. J., concurring in result). Justice Frankfurter put it succinctly in Baumgartner v. United States, 322 U. S. 665, 673-674 (1944), when he said that “[o]ne of the prerogatives of American citizenship is the right to criticize public men and measures.” Such criticism, inevitably, will not always be reasoned or moderate; public figures as well as public officials will be subject to “vehement, caustic, and sometimes unpleasantly sharp attacks,” New York Times, supra, at 270. “[T]he candidate who vaunts his spotless record and sterling integrity cannot convincingly cry ‘Foul!’ when an opponent or an industrious reporter attempts 52 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. to demonstrate the contrary.” Monitor Patriot Co. v. Roy, 401 U. S. 265, 274 (1971). Of course, this does not mean that any speech about a public figure is immune from sanction in the form of damages. Since New York Times Co. v. Sullivan, 376 U. S. 254 (1964), we have consistently ruled that a public figure may hold a speaker liable for the damage to reputation caused by publication of a defamatory falsehood, but only if the statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.” Id., at 279-280. False statements of fact are particularly valueless; they interfere with the truth-seeking function of the marketplace of ideas, and they cause damage to an individual’s reputation that cannot easily be repaired by counterspeech, however persuasive or effective. See Gertz, 418 U. S., at 340, 344, n. 9. But even though falsehoods have little value in and of themselves, they are “nevertheless inevitable in free debate,” id., at 340, and a rule that would impose strict liability on a publisher for false factual assertions would have an undoubted “chilling” effect on speech relating to public figures that does have constitutional value. “Freedoms of expression require “‘breathing space.’” Philadelphia Newspapers, Inc. v. Hepps, 475 U. S. 767, 772 (1986) (quoting New York Times, supra, at 272). This breathing space is provided by a constitutional rule that allows public figures to recover for libel or defamation only when they can prove both that the statement was false and that the statement was made with the requisite level of culpability. Respondent argues, however, that a different standard should apply in this case because here the State seeks to prevent not reputational damage, but the severe emotional distress suffered by the person who is the subject of an offensive publication. Cf. Zacchini v. Scripps-Howard Broadcasting Co., 433 U. S. 562 (1977) (ruling that the “actual malice” standard does not apply to the tort of appropriation of a right of publicity). In respondent’s view, and in the view of the HUSTLER MAGAZINE v. FALWELL 53 46 Opinion of the Court Court of Appeals, so long as the utterance was intended to inflict emotional distress, was outrageous, and did in fact inflict serious emotional distress, it is of no constitutional import whether the statement was a fact or an opinion, or whether it was true or false. It is the intent to cause injury that is the gravamen of the tort, and the State’s interest in preventing emotional harm simply outweighs whatever interest a speaker may have in speech of this type. Generally speaking the law does not regard the intent to inflict emotional distress as one which should receive much solicitude, and it is quite understandable that most if not all jurisdictions have chosen to make it civilly culpable where the conduct in question is sufficiently “outrageous.” But in the world of debate about public affairs, many things done with motives that are less than admirable are protected by the First Amendment. In Garrison v. Louisiana, 379 U. S. 64 (1964), we held that even when a speaker or writer is motivated by hatred or ill will his expression was protected by the First Amendment: “Debate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth.” Id., at 73. Thus while such a bad motive may be deemed controlling for purposes of tort liability in other areas of the law, we think the First Amendment prohibits such a result in the area of public debate about public figures. Were we to hold otherwise, there can be little doubt that political cartoonists and satirists would be subjected to damages awards without any showing that their work falsely defamed its subject. Webster’s defines a caricature as “the deliberately distorted picturing or imitating of a person, literary style, etc. by exaggerating features or mannerisms for satirical effect.” Webster’s New Unabridged Twentieth 54 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. Century Dictionary of the English Language 275 (2d ed. 1979). The appeal of the political cartoon or caricature is often based on exploitation of unfortunate physical traits or politically embarrassing events—an exploitation often calculated to injure the feelings of the subject of the portrayal. The art of the cartoonist is often not reasoned or evenhanded, but slashing and one-sided. One cartoonist expressed the nature of the art in these words: “The political cartoon is a weapon of attack, of scorn and ridicule and satire; it is least effective when it tries to pat some politician on the back. It is usually as welcome as a bee sting and is always controversial in some quarters.” Long, The Political Cartoon: Journalism’s Strongest Weapon, The Quill 56, 57 (Nov. 1962). Several famous examples of this type of intentionally injurious speech were drawn by Thomas Nast, probably the greatest American cartoonist to date, who was associated for many years during the post-Civil War era with Harper’s Weekly. In the pages of that publication Nast conducted a graphic vendetta against William M. “Boss” Tweed and his corrupt associates in New York City’s “Tweed Ring.” It has been described by one historian of the subject as “a sustained attack which in its passion and effectiveness stands alone in the history of American graphic art.” M. Keller, The Art and Politics of Thomas Nast 177 (1968). Another writer explains that the success of the Nast cartoon was achieved “because of the emotional impact of its presentation. It continuously goes beyond the bounds of good taste and conventional manners.” C. Press, The Political Cartoon 251 (1981). Despite their sometimes caustic nature, from the early cartoon portraying George Washington as an ass down to the present day, graphic depictions and satirical cartoons have played a prominent role in public and political debate. Nast’s castigation of the Tweed Ring, Walt McDougall’s characterization of Presidential candidate James G. Blaine’s banquet with the millionaires at Delmonico’s as “The Royal HUSTLER MAGAZINE v. FALWELL 55 46 Opinion of the Court Feast of Belshazzar,” and numerous other efforts have undoubtedly had an effect on the course and outcome of contemporaneous debate. Lincoln’s tall, gangling posture, Teddy Roosevelt’s glasses and teeth, and Franklin D. Roosevelt’s jutting jaw and cigarette holder have been memorialized by political cartoons with an effect that could not have been obtained by the photographer or the portrait artist. From the viewpoint of history it is clear that our political discourse would have been considerably poorer without them. Respondent contends, however, that the caricature in question here was so “outrageous” as to distinguish it from more traditional political cartoons. There is no doubt that the caricature of respondent and his mother published in Hustler is at best a distant cousin of the political cartoons described above, and a rather poor relation at that. If it were possible by laying down a principled standard to separate the one from the other, public discourse would probably suffer little or no harm. But we doubt that there is any such standard, and we are quite sure that the pejorative description “outrageous” does not supply one. “Outrageousness” in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression. An “outrageousness” standard thus runs afoul of our longstanding refusal to allow damages to be awarded because the speech in question may have an adverse emotional impact on the audience. See NAACP v. Claiborne Hardware Co., 458 U. S. 886, 910 (1982) (“Speech does not lose its protected character . . . simply because it may embarrass others or coerce them into action”). And, as we stated in FCC v. Pacifica Foundation, 438 U. S. 726 (1978): “[T]he fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection. 56 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas.” Id., at 745-746. See also Street v. New York, 394 U. S. 576, 592 (1969) (“It is firmly settled that. . . the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers”). Admittedly, these oft-repeated First Amendment principles, like other principles, are subject to limitations. We recognized in Pacifica Foundation, that speech that is “ ‘vulgar,’ ‘offensive,’ and ‘shocking’” is “not entitled to absolute constitutional protection under all circumstances. ” 438 U.S., at 747. In Chaplinsky n. New Hampshire, 315 U. S. 568 (1942), we held that a State could lawfully punish an individual for the use of insulting “‘fighting’ words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Id., at 571-572. These limitations are but recognition of the observation in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749, 758 (1985), that this Court has “long recognized that not all speech is of equal First Amendment importance.” But the sort of expression involved in this case does not seem to us to be governed by any exception to the general First Amendment principles stated above. We conclude that public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here at issue without showing in addition that the publication contains a false statement of fact which was made with “actual malice,” i. e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true. This is not merely a “blind application” of the New York Times standard, see Time, Inc. n. Hill, 385 U. S. 374, 390 (1967), it reflects our considered judgment that such a standard is necessary to give adequate “breathing space” to the freedoms protected by the First Amendment. HUSTLER MAGAZINE v. FALWELL 57 46 White, J., concurring in judgment Here it is clear that respondent Falwell is a “public figure” for purposes of First Amendment law.5 The jury found against respondent on his libel claim when it decided that the Hustler ad parody could not “reasonably be understood as describing actual facts about [respondent] or actual events in which [he] participated.” App. to Pet. for Cert. Cl. The Court of Appeals interpreted the jury’s finding to be that the ad parody “was not reasonably believable,” 797 F. 2d, at 1278, and in accordance with our custom we accept this finding. Respondent is thus relegated to his claim for damages awarded by the jury for the intentional infliction of emotional distress by “outrageous” conduct. But for reasons heretofore stated this claim cannot, consistently with the First Amendment, form a basis for the award of damages when the conduct in question is the publication of a caricature such as the ad parody involved here. The judgment of the Court of Appeals is accordingly Reversed. Justice Kennedy took no part in the consideration or decision of this case. Justice White, concurring in the judgment. As I see it, the decision in New York Times Co. v. Sullivan, 376 U. S. 254 (1964), has little to do with this case, for here the jury found that the ad contained no assertion of fact. But I agree with the Court that the judgment below, which penalized the publication of the parody, cannot be squared with the First Amendment. 5 Neither party disputes this conclusion. Respondent is the host of a nationally syndicated television show and was the founder and president of a political organization formerly known as the Moral Majority. He is also the founder of Liberty University in Lynchburg, Virginia, and is the author of several books and publications. Who’s Who in America 849 (44th ed. 1986-1987). 58 OCTOBER TERM, 1987 Syllabus 485 U. S. MATHEWS v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 86-6109. Argued December 2, 1987—Decided February 24, 1988 Petitioner, an employee of the Small Business Administration (SBA), was the principal SBA contact for James DeShazer, the president of a company that participated in an SBA program. DeShazer believed that his company was not being provided with certain program benefits because he had rejected petitioner’s repeated requests for loans. Assisting the Federal Bureau of Investigation (FBI) in an investigation of the matter, DeShazer, under FBI surveillance, offered petitioner a previously requested loan, which petitioner agreed to accept. Later, DeShazer met petitioner and gave him the money. Petitioner was immediately arrested and charged with the federal offense of accepting a bribe in exchange for an official act. The District Court denied petitioner’s pretrial motion seeking to raise an entrapment defense, ruling that entrapment was not available because petitioner would not admit all of the elements (including the requisite mental state) of the offense. Petitioner testified in his own defense that although he had accepted the loan, he believed it was a personal loan unrelated to his SBA duties. The court refused to instruct the jury as to entrapment, the jury found petitioner guilty, and the Court of Appeals affirmed. Held: Even if the defendant in a federal criminal case denies one or more elements of the crime, he is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment—a defense that has the two related elements of Government inducement of the crime, and a lack of predisposition on the defendant’s part to engage in the criminal conduct. There is no merit to the Government’s contention that, because entrapment presupposes the commission of a crime, a defendant should not be allowed both to deny the offense or an element thereof, and to rely on the inconsistent, affirmative defense of entrapment. Although the Federal Rules of Civil Procedure specifically authorize inconsistent pleading, the absence of a cognate provision in the Federal Rules of Criminal Procedure is not because of the Rules’ intent to more severely restrict criminal defendants than civil parties, but because of the much less elaborate system of pleadings—particularly with respect to the defendant—in a criminal case. A simple not guilty plea puts the prosecution to its proof as to all elements of the crime charged, and raises the defense of entrapment. Moreover, the Government’s arguments that allowing a defendant to rely on inconsistent de MATHEWS v. UNITED STATES 59 58 Opinion of the Court fenses will encourage perjury, lead to jury confusion, and subvert the trial’s truth-finding function are not persuasive. The question whether the evidence at trial was insufficient to support an entrapment instruction was pretermitted by the Court of Appeals, and is open for consideration by that court on remand. Pp. 62-66. 803 F. 2d 325, reversed and remanded. Rehnquist, C. J., delivered the opinion of the Court, in which Brennan, Marshall, Stevens, and O’Connor, JJ., joined. Brennan, J., filed a concurring opinion, post, p. 66. Scalia, J., filed an opinion concurring in the judgment, post, p. 67. White, J., filed a dissenting opinion, in which Blackmun, J., joined, post, p. 68. Kennedy, J., took no part in the consideration or decision of the case. Franklyn M. Gimbel, by appointment of the Court, 481 U. S. 1046, argued the cause for petitioner. With him on the briefs were Jeffrey A. Kaufman and Mama M. Tess-Mattner. Charles A. Rothfeld argued the cause for the United States. With him on the brief were Solicitor General Fried, Assistant Attorney General Weld, and Deputy Solicitor General Bryson. Chief Justice Rehnquist delivered the opinion of the Court. This case requires the Court to decide whether a defendant in a federal criminal prosecution who denies commission of the crime may nonetheless have the jury instructed, where the evidence warrants, on the affirmative defense of entrapment. The United States Court of Appeals for the Seventh Circuit upheld the ruling of the District Court, which had refused to instruct the jury as to entrapment because petitioner would not admit committing all of the elements of the crime of accepting a bribe. 803 F. 2d 325 (1986). This holding conflicts with decisions of other Courts of Appeals, which have taken a variety of approaches to the question.1 We 1Two other Circuits have adopted the approach taken by the Seventh Circuit. See United States v. Hill, 655 F. 2d 512, 514 (CA3 1981); United States v. Whitley, 734 F. 2d 1129, 1139 (CA6 1984). Four Circuits have ruled that a defendant may not affirmatively deny committing the elements of the crime if he desires an entrapment instruction. United States 60 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. granted certiorari to resolve this conflict, and we now reverse. Petitioner was employed by the Small Business Administration (SBA) in Milwaukee, Wisconsin, and was responsible for the SBA’s “8A Program,” which provided aid to certain small businesses. Under the program, the SBA obtained Government contracts and subcontracted them to program participants. The SBA would then assist the participants in performing the contracts. Midwest Knitting Mills, whose president was James DeShazer, was one of the participants in the 8A Program. DeShazer’s principal contact at the SBA was petitioner. In October 1984, DeShazer complained to a Government customer that petitioner had repeatedly asked for loans. DeShazer believed that petitioner was not providing Midwest with certain 8A Program benefits because DeShazer had not made the requested loans. In early 1985, the Federal Bureau of Investigation (FBI) arranged for DeShazer to assist in the investigation resulting from his complaint. Under FBI surveillance, DeShazer offered petitioner a loan that, according to DeShazer, petitioner had previously requested. v. Annese, 631 F. 2d 1041, 1046-1047 (CAI 1980); United States v. Mayo, 705 F. 2d 62, 72-73 (CA2 1983); United States v. Dorta, 783 F. 2d 1179, 1181 (CA4), cert, denied, 477 U. S. 905 (1986); United States v. Mora, 768 F. 2d 1197, 1198-1199 (CAIO 1985), cert, denied, 474 U. S. 1083 (1986). One Circuit has declared that a defendant denying the elements of the crime may rely on entrapment if the issue is raised by the Government’s evidence. United States v. Smith, 757 F. 2d 1161, 1169 (CA11 1985). Another Circuit has developed a hybrid rule allowing a testifying defendant to contest the intent element of the offense charged, but not the acts, while arguing entrapment. United States v. Henry, 749 F. 2d 203 (CA5 1984) (en banc); two Circuits have ruled that a defendant is entitled to an entrapment instruction even if he testifies and denies all elements of the offense. United States v. Demma, 523 F. 2d 981 (CA9 1975) (en banc); Hansford v. United States, 112 U. S. App. D. C. 359, 303 F. 2d 219 (1962). We note also that even within the Circuits, the decisions have been contradictory and inconsistent. MATHEWS v. UNITED STATES 61 58 Opinion of the Court Petitioner agreed to accept the loan, and two months later, DeShazer met petitioner at a restaurant and gave him the money. Petitioner was immediately arrested and charged with accepting a gratuity in exchange for an official act. 18 U. S. C. § 201(g). Before trial petitioner filed a motion in limine seeking to raise an entrapment defense. The District Court denied the motion, ruling that entrapment was not available to petitioner because he would not admit all of the elements (including the requisite mental state) of the offense charged. The District Court did, however, allow petitioner to argue as his first line of defense that his acts “were procurred [sic] by the overt acts of the principle [sic] witness of the Government, Mr. DeShazer.”2 App. 131. At trial, the Government argued that petitioner had accepted the loan in return for cooperation in SBA matters. The Government called DeShazer, who testified both that petitioner had repeatedly asked for loans and that he and petitioner had agreed that the loan at issue would result in SBA-provided benefits for Midwest. The Government also played tape recordings of conversations between DeShazer and petitioner in which they discussed the loan. Petitioner testified in his own defense that although he had accepted the loan, he believed it was a personal loan unrelated to his duties at the SBA. Petitioner stated that he and DeShazer were friends and that he had accepted a personal loan from DeShazer previously. According to petitioner, he was in dire financial straits when DeShazer broached the possibility of providing a loan. Petitioner also testified that DeShazer had stated that he needed quickly to get rid of the money that he was offering to petitioner because he had been hiding the money from his wife and was concerned that she would be upset if she discovered this secret; DeShazer had also stated 2 In pursuing this line of defense, petitioner apparently introduced the same evidence that he planned to adduce in support of his entrapment claim. 62 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. at one point that if petitioner did not take the money soon, DeShazer would be tempted to spend it. At the close of the trial, petitioner moved for a “mistrial” because of the District Court’s refusal to instruct the jury as to entrapment. The District Court noted that the evidence of entrapment was “shaky at best,” ibid., but rather than premise its denial of petitioner’s motion on that ground, the court reaffirmed its earlier ruling that, as a matter of law, petitioner was not entitled to an entrapment instruction because he would not admit committing all elements of the crime charged. The jury subsequently found petitioner guilty. The United States Court of Appeals for the Seventh Circuit affirmed the District Court’s refusal to allow petitioner to argue entrapment: “When a defendant pleads entrapment, he is asserting that, although he had criminal intent, it was ‘the Government’s deception [that implanted] the criminal design in the mind of the defendant.’ United States v. Russell, 411 U. S. 423, 436 . . . (1973); United States v. Rodgers, 755 F. 2d 533, 550 (7th Cir. 1985). We find this to be inconsistent per se with the defense that the defendant never had the requisite criminal intent. We see no reason to allow [petitioner] or any other defendant to plead these defenses simultaneously.” 803 F. 2d, at 327. We granted certiorari, 480 U. S. 945 (1987), to consider under what circumstances a defendant is entitled to an entrapment instruction. We hold that even if the defendant denies one or more elements of the crime, he is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment. Because the parties agree as to the basics of the affirmative defense of entrapment as developed by this Court, there is little reason to chronicle its history in detail. Suffice it to say that the Court has consistently adhered to the view, first enunciated in Sorrells v. United States, 287 U. S. 435 (1932), MATHEWS v. UNITED STATES 63 58 Opinion of the Court that a valid entrapment defense has two related elements: government inducement of the crime, and a lack of predisposition on the part of the defendant to engage in the criminal conduct. See Sherman v. United States, 356 U. S. 369, 376-378 (1958); United States v. Russell, 411 U. S. 423, 435-436 (1973); Hampton v. United States, 425 U. S. 484, 489 (1976). Predisposition, “the principal element in the defense of entrapment,” Russell, supra, at 433, focuses upon whether the defendant was an “unwary innocent” or, instead, an “unwary criminal” who readily availed himself of the opportunity to perpetrate the crime. Sherman, supra, at 372; Russell, supra, at 436. The question of entrapment is generally one for the jury, rather than for the court. Sherman, supra, at 377. The Government insists that a defendant should not be allowed both to deny the offense and to rely on the affirmative defense of entrapment. Because entrapment presupposes the commission of a crime, Russell, supra, at 435, a jury could not logically conclude that the defendant had both failed to commit the elements of the offense and been entrapped. According to the Government, petitioner is asking to “clai[m] the right to swear that he had no criminal intent and in the same breath to argue that he had one that did not originate with him.” United States v. Henry, 749 F. 2d 203, 214 (CA5 1984) (en banc) (Gee, J., dissenting). As a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor. Stevenson v. United States, 162 U. S. 313 (1896); 4 C. Torcia, Wharton’s Criminal Procedure §538, p. 11 (12th ed. 1976) (hereinafter Wharton). A parallel rule has been applied in the context of a lesser included offense instruction, see Fed. Rule Crim. Proc. 31(c); Keeble v. United States, 412 U. S. 205, 208 (1973); Sansone v. United States, 380 U. S. 343, 349 (1965). In Stevenson, this Court reversed a murder conviction arising out of a gunfight in the Indian Territory. The 64 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. principal holding of the Court was that the evidence was sufficient to entitle the defendant to a manslaughter instruction, but the Court also decided that the defendant was entitled as well to have the jury instructed on self-defense. The affirmative defense of self-defense is, of course, inconsistent with the claim that the defendant killed in the heat of passion. Federal appellate cases also permit the raising of inconsistent defenses. See Johnson v. United States, 138 IL S. App. D. C. 174, 179, 426 F. 2d 651, 656 (1970) (the defense in a rape case was permitted to argue that the act did not take place and that the victim consented), cert, dism’d, 401 U. S. 846 (1971); see also Womack v. United States, 119 U. S. App. D. C. 40, 336 F. 2d 959 (1964). And state cases support the proposition that a homicide defendant may be entitled to an instruction on both accident and self-defense, two inconsistent affirmative defenses. 4 Wharton § 545, p. 32. The Government points out that inconsistent pleading is specifically authorized under the Federal Rules of Civil Procedure, but that there is no parallel authorization under the Federal Rules of Criminal Procedure. Rule 8(e)(2) of the Federal Rules of Civil Procedure provides in relevant part: “A party may set forth two or more statements of a claim or defense alternately or hypothetically, either in one count or defense or in separate counts or defenses. ... A party may also state as many separate claims or defenses as he has regardless of consistency and whether based on legal, equitable or maritime grounds. All statements shall be made subject to the obligations set forth in Rule 11.” (Emphasis added.) The absence of a cognate provision affecting criminal trials, we think, is not because the Rules intended to more severely restrict criminal defendants than civil parties, but because of the much less elaborate system of pleadings—particularly with respect to the defendant—in a criminal case. The issues of fact in a criminal trial are usually developed by the evidence adduced and the court’s instructions to the jury. A MATHEWS v. UNITED STATES 65 58 Opinion of the Court simple plea of not guilty, Fed. Rule Crim. Proc. 11, puts the prosecution to its proof as to all elements of the crime charged, and raises the defense of entrapment. Sorrells, 287 U. S., at 452. The only matters required to be specially pleaded by a defendant are notice of alibi, Fed. Rule Crim. Proc. 12.1, or of intent to rely on insanity as a defense, Fed. Rule Crim. Proc. 12.2. The Government argues that allowing a defendant to rely on inconsistent defenses will encourage perjury, lead to jury confusion, and subvert the truth-finding function of the trial. These same concerns are, however, present in the civil context, yet inconsistency is expressly allowed under the Federal Rules of Civil Procedure. We do not think that allowing inconsistency necessarily sanctions perjury. Here petitioner wished to testify that he had no intent to commit the crime, and have his attorney argue to the jury that if it concluded otherwise, then it should consider whether that intent was the result of Government inducement. The jury would have considered inconsistent defenses, but petitioner would not have necessarily testified untruthfully. We would not go so far as to say that charges on inconsistent defenses may not on occasion increase the risk of perjury, but particularly in the case of entrapment we think the practical consequences will be less burdensome than the Government fears. The Court of Appeals in United States v. Demina, 523 F. 2d 981, 985 (CA9 1975) (en banc), observed: “Of course, it is very unlikely that the defendant will be able to prove entrapment without testifying and, in the course of testifying, without admitting that he did the acts charged. . . . When he takes the stand, the defendant forfeits his right to remain silent, subjects himself to all the rigors of cross-examination, including impeachment, and exposes himself to prosecution for perjury. Inconsistent testimony by the defendant seriously impairs and potentially destroys his credibility. While we hold that a defendant may both deny the acts 66 OCTOBER TERM, 1987 Brennan, J., concurring 485 U. S. and other elements necessary to constitute the crime charged and at the same time claim entrapment, the high risks to him make it unlikely as a strategic matter that he will choose to do so.” The Government finally contends that since the entrapment defense is not of “constitutional dimension,” Russell, 411 U. S., at 433, and that since it is “relatively limited,” id., at 435, Congress would be free to make the entrapment defense available on whatever conditions and to whatever category of defendants it believed appropriate. Congress, of course, has never spoken on the subject, and so the decision is left to the courts. We are simply not persuaded by the Government’s arguments that we should make the availability of an instruction on entrapment where the evidence justifies it subject to a requirement of consistency to which no other such defense is subject. The Government contends as an alternative basis for affirming the judgment below that the evidence at trial was insufficient to support an instruction on the defense of entrapment. Of course evidence that Government agents merely afforded an opportunity or facilities for the commission of the crime would be insufficient to warrant such an instruction. But this question was pretermitted by the Court of Appeals, and it will be open for consideration by that court on remand. Reversed and remanded. Justice Kennedy took no part in the consideration or decision of this case. Justice Brennan, concurring. I join the Court’s opinion. I write separately only because I have previously joined or written four opinions dissenting from this Court’s holdings that the defendant’s predisposition is relevant to the entrapment defense. Hampton v. United States, 425 U. S. 484, 495 (1976) (Brennan, J., dissenting); MATHEWS v. UNITED STATES 67 58 Scalia, J., concurring in judgment United States v. Russell, 411 U. S. 423, 436 (1973) (Douglas, J., dissenting); id., at 439 (Stewart, J., dissenting); Sherman v. United States, 356 U. S. 369, 378 (1958) (Frankfurter, J., concurring in judgment). See also Sorrells v. United States, 287 U. S. 435, 453 (1932) (Roberts, J., concurring in judgment). Although some governmental misconduct might be sufficiently egregious to violate due process, Russell, supra, at 431-432, my differences with the Court have been based on statutory interpretation and federal common law, not on the Constitution. Were I judging on a clean slate, I would still be inclined to adopt the view that the entrapment defense should focus exclusively on the Government’s conduct. But I am not writing on a clean slate; the Court has spoken definitively on this point. Therefore I bow to stare decisis, and today join the judgment and reasoning of the Court. Justice Scalia, concurring in the judgment. I concur in the judgment of the Court because in my view the defense of entrapment will rarely be genuinely inconsistent with the defense on the merits, and when genuine inconsistency exists its effect in destroying the defendant’s credibility will suffice to protect the interests of justice. The typical case presenting the issue before us here is one in which the defendant introduces evidence to the effect that he did not commit the unlawful acts, or did not commit them with the requisite unlawful intent, and also introduces evidence to show his lack of predisposition and inordinate government inducement. There is nothing inconsistent in these showings. The inconsistency alleged by the government is a purely formal one, which arises only if entrapment is defined to require not only (1) inordinate government inducement to commit a crime, (2) directed at a person not predisposed to commit the crime, but also (3) causing that person to commit the crime. If the third element is added to the definition, counsel’s argument to the jury cannot claim entrapment without admitting the crime. But I see no reason why the third 68 OCTOBER TERM, 1987 White, J., dissenting 485 U. S. element is essential, unless it is for the very purpose of rendering the defense unavailable without admission of the crime. Surely it does not add anything of substance to the findings the jury must make, since findings of (1) inordinate inducement plus (2) lack of predisposition will almost inevitably produce a conclusion of (3) causality. To be sure, entrapment cannot be available as a defense unless a crime by the object of the entrapment is established, since if there is no crime there is nothing to defend against; but in that sense all affirmative defenses assume commission of the crime. My point is not that entrapment must be defined to exclude element (3). Whether it is or not, since that element seems to me unnecessary to achieve the social policy fostered by the defense I am not willing to declare the defense unavailable when it produces the formal inconsistency of the defendant’s simultaneously denying the crime and asserting entrapment which assumes commission of the crime. I would not necessarily accept such formal inconsistency for other defenses, where the element contradicted is a functionally essential element of the defense. Of course in the entrapment context, as elsewhere, the defendant’s case may involve genuine, nonformal inconsistency. The defendant might testify, for example, that he was not in the motel room where the illegal drugs- changed hands, and that the drugs were pressed upon him in the motel room by agents of the government. But that kind of genuine inconsistency here, as elsewhere, is self-penalizing. There is nothing distinctive about entrapment that justifies a special prophylactic rule. Justice White, with whom Justice Blackmun joins, dissenting. At his criminal trial, petitioner took the stand and flatly denied accepting a loan “for or because of any official act.” App. 128-130; 18 U. S. C. § 201(g). Petitioner later moved for a mistrial because the District Court would not permit MATHEWS v. UNITED STATES 69 58 White, J., dissenting him to rely on that testimony while he simultaneously argued that, in fact, he had accepted a loan for an official act, but only at the Government’s instigation. Today, the Court holds that this rather sensible ruling on the part of the District Court constitutes reversible error. The reasons the Court offers for reaching this conclusion are not at all persuasive, and I respectfully dissent. I The Court properly recognizes that its result is not compelled by the Constitution. As the Court acknowledges, petitioner has no Fifth or Sixth Amendment right to conduct the inconsistent entrapment defense that he wished to mount at trial. Ante, at 66. And yet, if the Constitution does not compel reversal of the decision below, then what does? Certainly not any Act of Congress, or the Federal Rules of Criminal Procedure. As the majority candidly admits, “Congress . . . has never spoken on the subject [at issue here], and so the decision is left to the courts.” Ibid. Moreover, the Court also frankly notes that while the Federal Rules of Civil Procedure contain a provision expressly authorizing inconsistent defenses, Fed. Rule Civ. Proc. 8(e)(2), the Federal Criminal Rules are without any such authorization. Ante, at 64. Indeed, the rather scant authority the majority cites in support of its view that inconsistent defenses are generally permitted in criminal trials, ibid., is strongly suggestive of just how extraordinary such pleadings are in the criminal context.1 * ’While some cases have explicitly permitted inconsistent criminal defenses outside of the entrapment area, e. g., Whittaker v. United States, 108 U. S. App. D. C. 268, 269, 281 F. 2d 631, 632 (1960), others have been less receptive to this defense strategy, see, e. g., United States v. Ervin, 436 F. 2d 1331, 1334 (CA5 1971); Blunt v. United States, 131 U. S. App. D. C. 306, 312, n. 12, 404 F. 2d 1283, 1289, n. 12 (1968). Given the rarity of reported federal cases on this question, drawing any conclusion about the prevailing practice in the federal courts is difficult. See Note, Entrap- 70 OCTOBER TERM, 1987 White, J., dissenting 485 U. S. Nor is the result the Court reaches urged by a predominance of authority in the lower courts. As the Court recognizes, only two Circuits have held, as the Court does today, that a criminal defendant may deny committing the elements of a crime, and then contend that the Government entrapped him into the offense. The remaining Circuits are far more restrained in their allowance of such inconsistent defenses, divided along the lines the majority discusses in its opinion. Ante, at 59-60, n. 1. Thus, neither the Constitution, nor a statute, nor the Criminal Rules, nor the bulk of authority compels us to reverse petitioner’s conviction. Nor does the Court claim support from any of these sources for its decision. Instead, the majority rests almost exclusively on an application of the “general proposition [that] a defendant is entitled to an instruction as to any legally sufficient defense for which there exists evidence sufficient for a reasonable jury to find in his favor.” Ante, at 63. There are several reasons, however, why this “general proposition” is inapposite here. II First, there is the unique nature of the entrapment defense. There is a valuable purpose served by having civil litigants plead alternative defenses which may be legally inconsistent. Allowing a tort defendant to claim both that he owed no duty of care to the plaintiff, but that if he did, he met that duty, preserves possible alternative defenses under which the defendant is entitled to relief. It prevents formalities of pleadings, or rigid application of legal doctrines, from standing in the way of the equitable resolution of a civil dispute. See generally 2A J. Moore, J. Lucas, & G. Grotheer, Moore’s Federal Practice 118.32, pp. 8-224—8-229 (2d ed. 1987). The same may be true for some criminal defenses ment and Denial of the Crime: A Defense of the Inconsistency Rule, 1986 Duke L. J. 866, 878-879, and n. 127. MATHEWS v. UNITED STATES 71 58 White, J., dissenting (such as “self-defense” or “provocation”) where a defendant may truthfully testify as to the facts of the crime, leaving it to his counsel to argue that these facts make out, as a matter of law, several possible defenses. But the entrapment defense, by contrast, “is a relatively limited defense”; it is only available to “a defendant who has committed all the elements of a proscribed offense.” United States v. Russell, 411 U. S. 423, 435 (1973). Thus, when a defendant (as petitioner did here) testifies that he did not commit the elements of the offense he is charged with, the defense of entrapment is not a plausible alternative legal theory of the case; rather, it is a proper defense only if the accused is lying. We have rejected before the notion that a defendant has a right to lie at trial, or a right to solicit his attorney’s aid in executing such a defense strategy. See Nix v. Whiteside, 475 U. S. 157, 173 (1986). And there is respectable authority for concluding that no legitimate end of the criminal justice system is served by requiring a trial court to entertain such tactics, in the form of an entrapment defense which is at odds with the defendant’s own testimony.2 Allowing such inconsistency in defense tactics invites the scourge of an effective criminal justice system: perjury. In the past, we have taken extraordinary steps to combat perjury in criminal trials; these steps have even included permitting the admission of otherwise inadmissible evidence to prevent a defendant from procuring an acquittal via false testimony. See, e. g., Oregon n. Hass, 420 U. S. 714, 720-723 (1975); Harris n. New York, 401 U. S. 222, 225-226 (1971). Yet today, the Court reaches a result which it concedes “may ... on occasion” increase the risk of perjury. Ante, at 65. This is reason enough to reject the Court’s result. Worse still, the majority’s prognostication may well 2 See, e. g., United States v. Dorta, 783 F. 2d 1179, 1181-1182 (CA4 1986); United States v. Smith, 757 F. 2d 1161, 1167-1168 (CA11 1985); United States v. Henry, 749 F. 2d 203, 214-216 (CA5 1984) (en banc) (Gee, J., dissenting). 72 OCTOBER TERM, 1987 White, J., dissenting 485 U. S. be an understatement. Even if—as the Court suggests, ibid, —inconsistent defenses do not measurably increase the frequency of perjury in civil trials, the risk of perjury in a criminal trial is always greater than in a civil setting because the stakes are so much higher. See Britt v. North Carolina, 404 U. S. 226, 238 (1971) (Douglas, J., dissenting). Absent some constitutional or statutory mandate to conduct criminal trials in a particular way, we should be taking steps to minimize, not increase, the danger of perjured testimony. After all, a criminal trial is not a game or a sport. “[T]he very nature of a trial [i]s a search for truth.” Nix n. Whiteside, supra, at 166. This observation is particularly applicable to criminal trials, which are the means by which we affix our most serious judgments of individual guilt or innocence. It is fundamentally inconsistent with this understanding of criminal justice to permit a defendant to win acquittal on a rationale which he states, under oath, to be false. “Permitting a defendant to argue two defenses that cannot both be true is equivalent to sanctioning perjury by the defendant.” See Note, Entrapment and Denial of the Crime: A Defense of the Inconsistency Rule, 1986 Duke L. J. 866, 883-884. Finally, even if the Court’s decision does not result in increased perjury at criminal trials, it will—at the very least — result in increased confusion among criminal juries.3 The lower courts have rightly warned that jury confusion is likely to result from allowing a defendant to say “I did not do it” 3 Again, the fact that the system endures the jury confusion caused by inconsistent civil defenses is no support for the Court’s conclusion here. For one thing, reliability is obviously a more important concern in criminal cases than in civil. Moreover, in civil cases, the trial court has the option of ordering the jury to complete a special verdict form, thus minimizing any errors in judgment which may result from inconsistent defenses. See Fed. Rule Civ. Proc. 49(a). The Criminal Rules contain no similar provision, cf. Fed. Rule Crim. Proc. 31, and “as a general rule special verdicts are disfavored in criminal cases,” see United States v. Buishas, 791 F. 2d 1310, 1317 (CA7 1986). MATHEWS v. UNITED STATES 73 58 White, J., dissenting while his lawyer argues “he did it, but the government tricked him into it.” See, e. g., United States v. Dorta, 783 F. 2d 1179, 1182 (CA4 1986). Creating such confusion may enable some defendants to win acquittal on the entrapment defense, but only under the peculiar circumstances where a jury rejects the defendant’s own stated view of the facts. We have not previously endorsed defense efforts to prevail at trial by playing such “shell games” with the jury; rather, we have written that “[a] defendant has no entitlement to the luck of a lawless decisionmaker.” Strickland n. Washington, 466 U. S. 668, 695 (1984). Nor, it should be added, is there any entitlement to a baffled decisionmaker. Ill Ultimately, only petitioner knows whether he accepted a loan in exchange for an official act, or whether he obtained it as a personal favor. Today, the Court holds that petitioner has a right to take the stand and claim the latter, while having his attorney argue that he was entrapped into doing the former. Nothing counsels such a result—let alone compels it. Hence this dissent. 74 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. BOWEN, SECRETARY OF HEALTH AND HUMAN SERVICES v. GALBREATH CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 86-1146. Argued December 9, 1987—Decided February 24, 1988 After the Secretary of Health and Human Services denied respondent’s application for supplemental security income (SSI) benefits under Title XVI of the Social Security Act, respondent appealed to the District Court, which reversed the denial and awarded her past-due benefits. The court also ordered the Secretary to pay attorney’s fees to respondent’s attorney out of the past-due benefits. The Court of Appeals affirmed. Held: A district court does not have the authority to order the Secretary to withhold a portion of past-due SSI benefits for the payment of attorney’s fees received in judicial proceedings under Title XVI. Pp. 75-79. 799 F. 2d 370, reversed. Brennan, J., delivered the opinion of the Court, in which all other Members joined, except Kennedy, J., who took no part in the consideration or decision of the case. Richard J. Lazarus argued the cause for petitioner. With him on the briefs were Solicitor General Fried, Assistant Attorney General Willard, Deputy Solicitor General Lauber, William G. Kanter, and Jeffrica Jenkins Lee. Anthony W. Bartels argued the cause and filed a brief for respondent. Justice Brennan delivered the opinion of the Court. The question before us is whether, under Title XVI of the Social Security Act, a district court has the authority to order the Secretary of Health and Human Services to withhold a portion of past-due supplemental security income benefits for the payment of attorney’s fees. After the Secretary of Health and Human Services denied Mary Alice Galbreath’s application for supplemental security income (SSI) benefits under Title XVI of the Social Security BOWEN v. GALBREATH 75 74 Opinion of the Court Act, she appealed to a Federal District Court. The District Court reversed the denial, and the Secretary accordingly paid Galbreath her full $7,954 in past-due benefits. Galbreath’s attorney, Anthony W. Bartels, then moved for attorney’s fees equal to 25% of the past-due benefits. The District Court determined that the amount requested was reasonable and, relying on 42 U. S. C. § 406(b)(1), ordered the Secretary “to compute, certify, and pay” Bartels his requested fee of $1,988.50 out of the the past-due benefits awarded Galbreath. The Secretary appealed, arguing that § 406(b)(1) applies only to cases under Title II of the Social Security Act and that the relevant statutes and regulations do not permit withholding past-due SSI benefits for payment of attorney’s fees in Title XVI cases. The Court of Appeals for the Eighth Circuit affirmed. 799 F. 2d 370 (1986). We granted certiorari to resolve a conflict among the Courts of Appeals,* 481 U. S. 1036 (1987), and now reverse. Title II is an insurance program. Enacted in 1935, it provides old-age, survivor, and disability benefits to insured individuals irrespective of financial need. See 42 U. S. C. §§403, 423 (1982 ed. and Supp. III). Title XVI is a welfare program. Enacted in 1972, it provides SSI benefits to financially needy individuals who are aged, blind, or disabled regardless of their insured status. See 42 U. S. C. § 1382(a) (1982 ed. and Supp. III). Until 1965, Title II contained no provision expressly authorizing a district court to award fees to a claimant’s attorney. In 1965, however, the Court of Appeals for the Fifth Circuit held that 42 U. S. C. § 405(g) implicitly authorized district courts to order the payment of attorney’s fees out of * Compare Howard v. Bowen, 823 F. 2d 185 (CA7 1987) (withholding not permitted); McCarthy v. Secretary of Health and Human Services, 793 F. 2d 741 (CA6 1986) (same); Motley v. Heckler, 800 F. 2d 1253 (CA4 1986) (same), with Clay v. Secretary of Health and Human Services, 823 F. 2d 679 (CAI 1987) (withholding is permitted); Reid v. Heckler, 735 F. 2d 757 (CA3 1984) (same); and the decision below. 76 OCTOBER TERM, 1987 • Opinion of the Court 485 U. S. past-due benefits. See Celebrezze n. Sparks, 342 F. 2d 286 (1965). Under 42 U. S. C. § 405(g), a court reviewing a decision of the Secretary has the power to enter “a judgment affirming, modifying, or reversing the decision of the Secretary.” The court in Sparks reasoned that where a statute gives a court jurisdiction, it must be presumed, absent any indication to the contrary, that the court was intended to exercise all the powers of a court, including the power to provide for payment of attorney’s fees out of any recovery. 342 F. 2d, at 288-289. Later in 1965, Congress effectively codified Sparks by adding a new subsection (b)(1) to 42 U. S. C. §406 that allows withholding of past-due benefits to pay attorney’s fees incurred in judicial proceedings under Title II. Social Security Amendments of 1965, Pub. L. 89-97, § 332, 79 Stat. 403. Subsection (b)(1) provides: “Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment, and the Secretary may, notwithstanding the provisions of section 405(i) of this title, certify the amount of such fee for payment to such attorney out of, and not in addition to, the amount of such past-due benefits.” In 1968, Congress amended 42 U. S. C. § 406(a) by adding two sentences giving the Secretary similar withholding authority to pay attorney’s fees incurred in Title II administrative proceedings. Social Security Amendments of 1967, Pub. L. 90-248, § 173, 81 Stat. 877. Thus, the District Court’s order in this case would clearly be valid if this were a Title II case. When Congress enacted Title XVI in 1972, however, it provided no similar authority to withhold past-due benefits for attorney’s fees. This omission is particularly telling because Congress incorporated BOWEN v. GALBREATH 77 74 Opinion of the Court many other provisions of Title II into Title XVI. In particular, while incorporating almost every other provision of §406 into Title XVI, Congress left out the provisions in § 406(b)(1) and § 406(a) that authorized judicial withholding and administrative withholding. Social Security Amendments of 1972, Pub. L. 92-603, §301, 86 Stat. 1476-1477, codified at 42 U. S. C. § 1383(d)(2). This omission does not appear to have been inadvertent. Indeed, with respect to administrative proceedings, the House Report specifically noted and explained the omission of withholding authority by twice stating: “Where an individual who has requested a hearing is represented before the Secretary by an attorney . . . there would be no withholding of attorney fees from such individual’s benefits. Your committee believes that to withhold such fees would be contrary to the purpose of the program.” H. R. Rep. No. 92-231, pp. 156, 187 (1971). The Senate Report also indicates the omission of administrative withholding authority was intentional. See S. Rep. No. 92-1230, p. 392 (1972) (“Where an individual who has requested a hearing is represented before the Secretary by an attorney . . . there would be no withholding of attorney fees from the individual’s benefits”). Although the legislative history offered no explanation specifically linked to the omission of judicial withholding authority, it is fair to assume that this omission also reflected Congress’ view that withholding past-due SSI benefits would be inconsistent with the purpose of the program. Given the extreme financial need of SSI beneficiaries, this view is not irrational. Nor would it be odd for Congress to conclude that withholding past-due benefits from financially needy individuals under Title XVI would cause greater hardship than withholding past-due benefits from insured individuals under Title II. We thus conclude that, as originally enacted, Title XVI evidenced a congressional intent not to allow the withholding of past- 78 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. due SSI benefits to pay attorney’s fees incurred in judicial proceedings. Respondent and the courts finding judicial withholding authority under Title XVI do not dispute the conclusion that Congress intended to disallow judicial withholding when it enacted Title XVI in 1972. Rather, they contend that courts possess inherent authority to order withholding and that a 1976 amendment to 42 U. S. C. § 1383(c)(3)—the judicial review provision of Title XVI—demonstrates Congress’ intent to allow that authority to be exercised. As enacted in 1972, 42 U. S. C. § 1383(c)(3) (1970 ed., Supp. IV) provided: “The final determination of the Secretary after a hearing under paragraph (1) shall be.subject to judicial review as provided in Section 405(g) of this title to the same extent as the Secretary’s final determinations under Section 405 of this title; except that the determination of the Secretary after such hearing as to any fact shall be final and conclusive and not subject to review by any court.” Pub. L. 92-603, §301, 86 Stat. 1476 (emphasis added). The 1976 amendment simply deleted the italicized portion of the statute. Act of Jan. 2, 1976, Pub. L. 94-202, 89 Stat. 1135. The clear and expressed intent was to make the Secretary’s factual findings under Title XVI subject to judicial review, just as they were under Title II. Nothing in the legislative history mentions withholding benefits to pay attorney’s fees. The Court of Appeals below and other courts have nonetheless reasoned that, because Congress intended to make judicial review under Title XVI the same as judicial review under Title II, courts adjudicating Title XVI cases must have the same inherent authority to order withholding under § 405(g) that, under Sparks, courts adjudicating Title II cases had even before § 406(b)(1) was added. We find this analysis unpersuasive. On its face, the deletion of a provision making factual findings unreviewable BOWEN v. GALBREATH 79 74 Opinion of the Court bears no apparent relation to whether withholding of past-due benefits should be allowed. Indeed, the deletion does not even purport to address cases involving legal, rather than factual, disputes, and we can hardly imagine that Congress meant to change the ban on withholding without addressing both kinds of cases. The courts that have concluded that the 1976 amendment authorizes judicial withholding rely on statements in the legislative history indicating Congress’ intent to make judicial review under Title II and Title XVI “virtually identical,” to “provide the same rights to . . . judicial review” under both Titles, and “to apply the same rules of judicial review to Title XVI cases as apply to Title II cases.” S. Rep. No. 94-550, pp. 1, 3-4 (1975). None of these statements suggests that Congress intended to allow withholding of past-due benefits. Rather, they simply state the obvious point that removing the provision barring review under Title XVI of the Secretary’s factual determinations makes the scope of issues reviewable under Title XVI and Title II the same. Even assuming courts have inherent authority under Sparks to withhold a portion of past-due SSI benefits to pay attorney’s fees in Title XVI cases, we see no reason why Congress cannot divest courts of that authority if it so chooses. In originally enacting Title XVI, Congress manifested its intent, by selective incorporation and legislative history, to disallow the withholding of past-due SSI benefits to pay attorney’s fees incurred in Title XVI cases. Until Congress sees fit to override its original decision, by amending Title XVI in a way that manifests an intent to allow withholding, that original decision stands. The judgment of the Court of Appeals is Reversed. Justice Kennedy took no part in the consideration or decision of this case. 80 OCTOBER TERM, 1987 Syllabus 485 U. S. PERALTA v. HEIGHTS MEDICAL CENTER, INC., DBA HEIGHTS HOSPITAL, et al. APPEAL FROM THE COURT OF APPEALS OF TEXAS, FIRST DISTRICT No. 86-1430. Argued November 30, 1987—Decided February 24, 1988 In 1982, a default judgment was entered against appellant in appellee medical center’s Texas state-court suit to recover a sum allegedly due under appellant’s guarantee of a hospital debt incurred by one of his employees. The judgment was recorded, a writ of attachment was issued, and appellant’s real property was sold to satisfy the judgment. In 1984, appellant initiated a bill of review proceeding seeking, inter alia, to set aside the default judgment and void the sale, and alleging that, since the original service of process itself showed it was untimely made and, in fact, he had never been personally served, the judgment was void under Texas law. The court entered summary judgment for appellee on the ground that it must be shown in a bill of review proceeding that the complainant had a meritorious defense to the action in which the judgment was entered, which appellant conceded he did not have. In affirming, the State Court of Appeals rejected appellant’s contention that the meritorious-defense requirement violated his due process rights under the Fourteenth Amendment to the Federal Constitution, declaring that the requirement was “not onerous.” The State Supreme Court denied appellant’s application for a writ of error, noting “No Reversible Error.” Held: The holding below contravenes this Court’s precedents, under which a judgment entered without notice or service violates the Due Process Clause. See, e. g., Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306; Armstrong v. Manzo, 380 U. S. 545. The argument that appellant suffered no harm from the default judgment since the same judgment would again be entered on retrial absent a meritorious defense is untenable because, had he had notice of the suit, appellant might have impleaded the employee whose debt had been guaranteed, worked out a settlement, paid the debt, or sold the property himself rather than suffer its sale at a constable’s auction for allegedly much less than its true value. Nor is there any doubt that the entry of the judgment itself had substantial adverse consequences, since the judgment was entered on county records, became a lien on appellant’s property which impaired his ability to mortgage or alienate the property, and was the basis for issuance of the writ of execution under which the property was promptly sold, again without notice. The contention that appellant has other PERALTA v. HEIGHTS MEDICAL CENTER, INC. 81 80 Opinion of the Court remedies to escape the consequences of an invalid judgment and should be left to pursue those avenues will not be considered here, since there is no indication that it was raised below. Pp. 84-87. Reversed. White, J., delivered the opinion of the Court, in which all other Members joined, except Kennedy, J., who took no part in the consideration or decision of the case. Bruce Ian Schimmel argued the cause for appellant. With him on the briefs were Stephen P. Dillon and Michael J. Kator. Jack E. Urquhart argued the cause for appellees. With him on the brief were Jack G. Carnegie, Paul A. Share, and Emil T. Bayko* Justice White delivered the opinion of the Court. Heights Medical Center, Inc. (hereafter appellee), sued appellant Peralta in February 1982 to recover some $5,600 allegedly due under appellant’s guarantee of a hospital debt incurred by one of his employees. Citation issued, the return showing personal, but untimely, service. Appellant did not appear or answer, and on July 20, 1982, default judgment was entered for the amount claimed, plus attorney’s fees and costs. In June 1984, appellant began a bill of review proceeding in the Texas courts to set aside the default judgment and obtain other relief.1 In the second amended petition, it was alleged *Jim Mattox, Attorney General, Mary F. Keller, Executive Assistant Attorney General, and Javier P. Guajardo, Assistant Attorney General, filed a brief for the State of Texas as amicus curiae. ’Texas Rule of Civil Procedure 329b(f) provides: “On expiration of the time within which the trial court has plenary power, a judgment cannot be set aside by the trial court except by bill of review for sufficient cause, filed within the time allowed by law; provided that the court may at any time correct a clerical error in the record of a judgment and render judgment nunc pro tunc under Rule 316, and may also sign an order declaring a previous judgment or order to be void because signed after the court’s plenary power had expired.” 82 OCTOBER TERM, 1987 485 U. S. Opinion of the Court that the return of service itself showed a defective service2 and that appellant in fact had not been personally served at all. The judgment was therefore void under Texas law. It was also alleged that the judgment was abstracted and recorded in the county real property records, thereby creating a cloud on appellant’s title, that a writ of attachment was issued, and that, unbeknownst to him, his real property was sold to satisfy the judgment and for much less than its true value. Appellant prayed that the default judgment be vacated, the abstract of judgment be expunged from the county real property records, the constable’s sale be voided, and that judgment for damages be entered against the Medical Center and Mr. and Mrs. Paul-Seng-Ngan Chen, the purchasers at the constable’s sale and appellees here. Appellee filed a motion for summary judgment asserting that in a bill of review proceeding such as appellant filed, it must be shown that petitioner had a meritorious defense to the action in which judgment had been entered, that petitioner was prevented from proving his defense by the fraud, accident, or wrongful act of the opposing party, and that there had been no fault or negligence on petitioner’s part. Although it was assumed for the purposes of summary judgment that there had been defective service and that this lapse excused proof of the second and third requirement for obtaining a bill of review, it was assertedly necessary, nevertheless, to show a meritorious defense, which appellant had eon- 2 The petition alleged that the record contained a return of service of process, showing that service was effected more than 90 days after its issuance, contrary to Texas Rule of Civil Procedure 101 (repealed effective Jan. 1, 1988). Record 41. The parties agree that under Texas law at the time of this suit, the citation lost its official status after 90 days. Texas courts have held that service after the 90th day is a nullity, depriving the court of personal jurisdiction over the defendant. Lewis v. Lewis, 667 S. W. 2d 910, 911 (Tex. App. 1984); Kem v. Krueger, 626 S. W. 2d 143, 144 (Tex. App. 1981); Lemothe v. Cimbalista, 236 S. W. 2d 681, 682 (Tex. Civ. App. 1951). PERALTA v. HEIGHTS MEDICAL CENTER, INC. 83 80 Opinion of the Court ceded he did not have. In response to the motion, appellant repeated the allegations in his petition and filed an affidavit denying that he had ever been personally served or had ever been notified of the entry of default judgment3 or of the sale of his property. Appellee’s motion for summary judgment was granted. Record 54. Appellant’s motion for rehearing for the first time asserted federal constitutional claims under the Fourteenth Amendment. Appellee answered that under Texas law there were three avenues by which to attack a judgment on the grounds that it was void for want of service: an appeal within 30 days of the judgment; by writ of error within 6 months; and by bill of review. It being too late to seek either of the first two courses, appellee urged that the bill of review was the only route then open to appellant, and that route was not available to him—even assuming he did not receive notice of the action filed against him—since he had no meritorious defense. Appellee denied that the meritorious-defense requirement threatened any federal constitutional rights. Rehearing was denied. On appeal to the Texas Court of Appeals, appellant repeated his claims that in the absence of valid service of process and notice of the judgment, showing a meritorious defense was not necessary under Texas law and requiring it violated the Fourteenth Amendment. Appellee argued that despite the allegation of no service and no notice of judgment, the meritorious-defense requirement prevented relief and that even though the bill of review was the only avenue of relief, the State could constitutionally insist on the showing of a meritorious defense. The Court of Appeals affirmed, reciting the three elements essential for granting a bill of review and holding that a meritorious defense must be shown 3 Texas Rule of Civil Procedure 239(a) requires that notice of default judgment be mailed to the defendant at the address which the party taking the judgment is required to file with the clerk. Appellant argued in the Court of Appeals that neither of these requirements had been fulfilled. 84 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. whether there had been proper service and notice or not. 715 S. W. 2d 721 (1986). The court rejected the due process challenge because it viewed the meritorious-defense requirement as “not onerous.” Id., at 722. Rehearing was denied, as was the application for a writ of error filed with the Texas Supreme Court, that court noting, “No Reversible Error.” App. to Juris. Statement 2a. Because the holding below appeared problematic in light of our precedents, we noted probable jurisdiction. 481 U. S. 1067 (1987). The case was briefed and argued, and we now reverse.4 In opposition to summary judgment, appellant denied that he had been personally served and that he had notice of the judgment. The case proceeded through the Texas courts on that basis,5 6 and it is not denied by appellee that under our cases, a judgment entered without notice or service is constitutionally infirm. “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 314 (1950). Failure to give notice violates “the most rudimentary demands of due process of law.” Armstrong v. Manzo, 380 U. S. 545, 550 (1965). See also 4 Further examination of the record indicates that appellee was correct in challenging our appellate jurisdiction, Motion to Dismiss 3-4, because there was no explicit challenge to the constitutionality of Texas Rule of Civil Procedure 329b(f ) and because the Texas courts did not pass on any such issue. Charleston Federal Savings & Loan Assn. v. Alderson, 324 U. S. 182, 185 (1945); Richmond Newspapers, Inc. v. Virginia, 448 U. S. 555, 562, n. 4 (1980). Treating the filed papers as a petition for certiorari, however, we grant the petition. We nevertheless continue to refer to Peralta and Heights Medical Center as appellant and appellee. 6 Appellee conceded at oral argument that for purposes of this decision, we must assume the truth of appellant’s claims that he was never served with process. Tr. of Oral Arg. 39. PERALTA v. HEIGHTS MEDICAL CENTER, INC. 85 80 Opinion of the Court World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286, 291 (1980); Mathews v. Eldridge, 424 U. S. 319, 333 (1976); Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U. S. 100, 110 (1969); Pennoyer v. Neff, 95 U. S. 714, 733 (1878). The Texas courts nevertheless held, as appellee urged them to do, that to have the judgment set aside, appellant was required to show that he had a meritorious defense, apparently on the ground that without a defense, the same judgment would again be entered on retrial and hence appellant had suffered no harm from the judgment entered without notice. But this reasoning is untenable. As appellant asserts, had he had notice of the suit, he might have impleaded the employee whose debt had been guaranteed, worked out a settlement, or paid the debt. He would also have preferred to sell his property himself in order to raise funds rather than to suffer it sold at a constable’s auction. Nor is there any doubt that the entry of the judgment itself had serious consequences. It is not denied that the judgment was entered on the county records, became a lien on appellant’s property,6 and was the basis for issuance of a writ of execution under which appellant’s property was promptly sold without notice. Even if no execution sale had yet occurred, the lien encumbered the property and impaired appellant’s ability to mortgage or alienate it; and state procedures for creating and enforcing such liens are subject to the strictures of due process. See Mitchell v. W. T. Grant Co., 416 U. S. 600, 604 (1974); Hodge v. Muscatine County, 196 6 Under Texas law a judgment entitles the judgment creditor to a lien on the debtor’s property. As a matter of right and without notice and hearing, a judgment creditor can have the judgment abstracted and recorded. Tex. Prop. Code Ann. §§ 52.002, 52.004(a) (1984 and Supp. 1988). Such a recorded abstract “constitutes a lien on the real property of the defendant located in the county in which the abstract is recorded and indexed, including real property acquired after such recording and indexing,” § 52.001, and the holder of a judgment lien will have a superior interest to a later purchaser. Masterson v. Adams, 197 S. W. 2d 154, 156 (Tex. Civ. App. 1946). 86 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. U. S. 276, 281 (1905). Here, we assume that the judgment against him and the ensuing consequences occurred without notice to appellant, notice at a meaningful time and in a meaningful manner that would have given him an opportunity to be heard. Armstrong v. Manzo, supra, at 552. In this Court, appellee insists that appellant has other remedies to escape the consequences of an invalid judgment and should be left to pursue those avenues. This argument, which is made for the first time in this litigation and which appellant disputes, is apparently offered as an alternative ground for affirming the judgment below. We are not required, however, to entertain such submissions, particularly when there is no indication that they were raised below, and we are especially disinclined to become involved in resolving disputes about Texas law that should have been presented to the state courts. We shall deal with the case as it came here and affirm or reverse based on the ground relied on below. Appellee’s position below was that appellant either had a remedy by bill of review or not at all, and that that remedy was unavailable since no meritorious defense had been shown. It appears to us that the Texas courts decided the case on this basis. There was no mention of other remedies, no suggestion that appellant had sought the wrong remedy; and it seems obvious that had a meritorious defense been shown, and the allegations on service and notice found to be true, the offending judgment would have been vacated. The Texas court held that the default judgment must stand absent a showing of a meritorious defense to the action in which judgment was entered without proper notice to appellant, a judgment that had substantial adverse consequences to appellant. By reason of the Due Process Clause of the Fourteenth Amendment, that holding is plainly infirm. Where a person has been deprived of property in a manner contrary to the most basic tenets of due process, “it is no answer to say that in his particular case due process of law would have led to the same result because he had no adequate PERALTA v. HEIGHTS MEDICAL CENTER, INC. 87 80 Opinion of the Court defense upon the merits.” Coe n. Armour Fertilizer Works, 237 U. S. 413, 424 (1915). As we observed in Armstrong v. Manzo, 380 U. S., at 552, only “wip[ing] the slate clean . . . would have restored the petitioner to the position he would have occupied had due process of law been accorded to him in the first place.” The Due Process Clause demands no less in this case. The judgment below is Reversed. Justice Kennedy took no part in the consideration or decision of this case. 88 OCTOBER TERM, 1987 Syllabus 485 U. S. UNITED STATES v. LOUISIANA et AL. (ALABAMA AND MISSISSIPPI BOUNDARY CASE) ON EXCEPTIONS TO REPORT OF SPECIAL MASTER No. 9, Orig. Argued January 11, 1988—Decided March 1, 1988 In its 1985 opinion in this litigation, the Court ruled that Alabama and Mississippi, rather than the United States, own their respective portions of the bed under Mississippi Sound, and directed the parties to submit to the Special Master a proposed appropriate decree. 470 U. S. 93. Mississippi and the United States submitted proposed supplemental decrees which reflected their disagreement as to Mississippi’s coastline at two points (Alabama’s coastline is no longer in dispute). The first point of contention occurs between two islands along the Sound’s southern boundary. The second point involves Mississippi’s claimed interest in seabed south of Mississippi Sound in the vicinity of Chandeleur Sound. In his Supplemental Report, the Master concluded (a) that the decree proposed by Mississippi should not be entered, and (b) that, while the United States’ solution as to the second disputed point would be preferable, it would amount to a modification of the Court’s 1985 opinion because it would be beyond the scope of the reference to the Master, which concerned only Mississippi Sound and its boundary. The Master recommended that the Court enter an order directing the parties to submit a decree defining the coastline of Alabama and Mississippi “to the extent agreed upon”; defining Mississippi’s coastline as to the first disputed point as proposed by the United States; and defining Mississippi’s coastline as to the second point as lying along a described line heading west from an island on Mississippi Sound’s southern boundary to the Louisiana border. Mississippi noted exceptions relating only to the second point of contention, and not at all to the first contention. The United States is in opposition. Held: 1. Since the current phase of this litigation has so far dealt only with Mississippi Sound, and has not focused on Mississippi’s interest south of that Sound, this Court will not on the present record determine the extent of Mississippi’s rights thereto without the parties’ complete agreement and the Special Master’s ready acquiescence. However, any party may advance such claims as it might have with respect to the area south of Mississippi Sound and in the vicinity of Chandeleur Sound by filing a timely complaint in these proceedings. Pp. 92-93. ALABAMA AND MISSISSIPPI BOUNDARY CASE 89 88 Opinion of the Court 2. Because Mississippi’s presently pending objections do not relate to Mississippi Sound nor contest the validity of that Sound’s closing lines recommended by the Master, all parties are in agreement as to that Sound and its boundary. P. 92. Exceptions of Mississippi overruled, and Special Master’s Supplemental Report and his recommendations, to the extent they are consistent with this opinion, adopted and confirmed. Blackmun, J., delivered the opinion of the Court, in which all other Members joined, except Marshall and Kennedy, JJ., who took no part in the consideration or decision of the case. Jim R. Bruce, Special Assistant Attorney General, argued the cause for defendant State of Mississippi. With him on the brief was Edwin Lloyd Pittman, Attorney General. Jeffrey P. Minear argued the cause for the United States. On the brief were Solicitor General Fried, Acting Assistant Attorney General Marzulla, Deputy Solicitor General Wallace, and Donald A. Carr. * Justice Blackmun delivered the opinion of the Court. In the Court’s most recent opinion in this extended litigation, see 470 U. S. 93 (1985), Mississippi Sound was determined to be a historic bay under the Convention on the Territorial Sea and the Contiguous Zone, [1964] 15 U. S. T. (pt. 2) 1607, T. I. A. S. No. 5639. The waters of that Sound, therefore, are inland waters, and Alabama and Mississippi own their respective portions of the bed of Mississippi Sound. The Court, as is customary in cases of this kind, stated: “The parties are directed promptly to submit to the Special Master a proposed appropriate decree for this Court’s consideration; if the parties are unable to agree upon the form of the decree, each shall submit its proposal to the Master for his consideration and recommendation.” 470 U. S., at 115. *Grace Berg Schaible, Attorney General, G. Thomas Koester, Assistant Attorney General, and John Briscoe filed a brief for the State of Alaska as amicus curiae. 90 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. Jurisdiction was retained to entertain such further proceedings as might be determined to be necessary or advisable to effectuate and supplement the decree and to determine the rights of the parties. Ibid. The Supplemental Report dated March 16, 1987, of the Special Master, the Honorable Walter P. Armstrong, Jr., now has been filed and is before us. The Master notes therein, p. 2, that no disagreement remains among the parties with respect to the coastline and seaward boundary of Alabama. That much has been decided and is clear. The Master further notes, however, id., at 3, that Mississippi and the United States are in disagreement as to the “seaward boundary” of Mississippi “at two points.” Attached to the Report, as exhibits, are forms of a supplemental decree proposed respectively by the United States and by Mississippi. Id., at 31 and 38. The Special Master ends his Report with conclusions and recommendations. Id., at 26. Mississippi has noted exceptions. The United States is in opposition to those exceptions. Alabama at this point, of course, stands mute. Briefs have been filed and oral argument has been presented. The Special Master concluded (a) that the decree proposed by Mississippi should not be entered, ibid., and (b) that, while “the line proposed by the United States,” would be “a preferable solution,” it “would amount to a modification of the Court’s opinion of February 26, 1985,” because it “would be beyond the scope of the reference” to the Master. Id., at 27. He has recommended that the Court “enter an order directing the parties to prepare and submit to the Special Master a decree” defining the seaward boundaries of Alabama and Mississippi “to the extent agreed upon”; defining Mississippi’s seaward boundary between Petit Bois Island and Hom Island “as proposed in the decree submitted by the United States”; and, despite his expressed reservation noted above, defining the portion of Mississippi’s seaward boundary from West Ship Island westward as a described line inter- ALABAMA AND MISSISSIPPI BOUNDARY CASE 91 88 Opinion of the Court secting at its westernmost point with the already-determined Louisiana border. * Ibid. I The specific proceeding that culminated in this Court’s opinion of February 26, 1985, reported at 470 U. S. 93, concerned, we thought, only Mississippi Sound and its boundary. See id., at 94; Tr. of Oral Arg. 3. The Special Master’s Report and his stated reservation as to the scope of the reference to him also appear to reflect that understanding. But in its argument to the Master and in its present exceptions, Mississippi seeks to extend the scope of this litigation to include its interest in seabed south of Mississippi Sound. The State’s current arguments bear little relation to earlier proceedings unless one engrafts upon our 1985 opinion, and upon our direction therein for a proposed decree fixing the southern boundary of Mississippi Sound, an implication that Mississippi’s rights, if any, south of that Sound’s boundary are to be definitively determined in this phase of the litigation. To the south of the western part of Mississippi Sound lies Chandeleur Sound, a body of water east of Louisiana’s mainland and west of the offshore Chandeleur Islands that run north and south. Chandeleur Sound and Mississippi Sound generally lie perpendicular to each other. They are separated by Cat Island, West Ship Island, and East Ship Island. The latter two at one time formed a single island but became divided by hurricane action some years ago. An earlier phase of this litigation led to the entry of a supplemental decree issued June 16, 1975, see United States v. Louisiana (Louisiana Boundary Case), 422 U. S. 13, fixing the coastline (baseline) of Louisiana pursuant to the Court’s decision of March 17, 1975, see 420 U. S. 529. Embodied in that decree is a line then stipulated to by the United States and the State of Louisiana delimiting Louisiana’s interest in *We necessarily assume that, by his repeated use of the term “seaward boundary,” the Master is referring to Mississippi’s coastline and not to its ultimate offshore boundary. 92 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. Chandeleur Sound north of the Chandeleur Islands. The Solicitor General advises us that the United States, in this litigation with Mississippi, offered to recognize Mississippi’s rights “in the vicinity of Chandeleur Sound on the basis of an extension of the line stipulated” in the litigation between the United States and Louisiana (a line running from the location at that time of the northernmost of the Chandeleur Islands to a point near the middle of West Ship Island), but that Mississippi rejected that offer. Brief for United States 2-3. Mississippi acknowledges the rejection. Tr. of Oral Arg. 6. Thus, that easy solution to the controversy between the United States and Mississippi as to waters south of Mississippi Sound and in the vicinity of Chandeleur Sound proved to be unattainable. What remains in dispute is an area of about 150 square miles. Id., at 16. II As has been stated above, the current phase of the litigation up to this point, so far as Mississippi is concerned, has dealt only with Mississippi Sound. It has not focused on Mississippi’s interest south of Mississippi Sound. This being so, we sympathize with the Special Master’s unease about the scope of the reference to him. With the case in its present somewhat confused posture, we are unwilling on the present record to determine the extent of Mississippi’s rights south of Mississippi Sound without the parties’ complete agreement and the Special Master’s ready acquiescence. Because Mississippi’s exceptions to the Special Master’s Supplemental Report do not relate at all to Mississippi Sound, and do not contest the validity of that Sound’s closing lines recommended by the Master, we are left with a situation where all parties are in agreement as to that Sound and its boundary. The exceptions of Mississippi, as presented to us at this time, therefore are overruled but without prejudice to the advancement of such claims as any party might have with respect to the area south of Mississippi Sound and in the ALABAMA AND MISSISSIPPI BOUNDARY CASE 93 88 Opinion of the Court vicinity of Chandeleur Sound in an appropriate separate chapter of these proceedings. The Supplemental Report dated March 16, 1987, of the Special Master and his recommendations, to the extent—and only to the extent—they are consistent with this opinion, are adopted and confirmed. The parties once again are directed promptly to submit to the Special Master a proposed appropriate decree for this Court’s consideration defining the claims of Alabama and Mississippi with respect to Mississippi Sound. If the parties are unable to agree upon the form of the decree, each shall submit its proposal to the Special Master for his consideration and recommendation. Each party shall bear its own costs; the actual expenses of the Special Master incurred with respect to this litigation since February 26, 1985, shall be borne half by the United States and half by Mississippi. The Court retains jurisdiction to entertain such further proceedings, enter such orders, and issue such writs as from time to time may be determined to be necessary or advisable to effectuate and supplement the forthcoming decree and to determine the rights of the respective parties. In order to facilitate the resolution of any question that might remain as to Chandeleur Sound, leave is granted the State of Mississippi and the United States, respectively, without further motion, to file a complaint with this Court setting forth its claim to any undecided portion of Chandeleur Sound. The complaint may be filed within 60 days of the date this opinion is filed. An opposing party shall have 45 days to respond. It is expected that all concerned will cooperate in expediting this remaining aspect of this phase of the litigation. It is so ordered. Justice Marshall and Justice Kennedy took no part in the consideration or decision of this litigation. 94 OCTOBER TERM, 1987 Syllabus 485 U. S. IMMIGRATION AND NATURALIZATION SERVICE v. ABUDU CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 86-1128. Argued December 1, 1987—Decided March 1, 1988 Respondent, a native and* citizen of Ghana, overstayed his visa. After he pleaded guilty in 1981 to drug charges, deportation proceedings were initiated, at which he expressly declined to seek asylum as a refugee. In 1982, he was ordered deported, and in 1984, the Board of Immigration Appeals (BIA) dismissed his appeal. In 1985, while his petition for review in the Court of Appeals was pending, respondent filed a motion with the BIA requesting a reopening of his deportation proceeding to enable him to apply for asylum and a withholding of deportation. He claimed that he had a well-founded fear that if he was returned to Ghana his life and freedom would be threatened by the government that had seized power in 1981. Moreover, in 1984, he had received a surprise visit from a former acquaintance who had become a Ghana government official and who, respondent believed, was attempting to entice him to return in order to force him to disclose the whereabouts of his brother and other government enemies. The BIA denied respondent’s motion both on the ground that he had failed to make out a prima facie case of eligibility for asylum and on the alternative ground that he had failed to explain reasonably his decision not to request asylum in the first instance. The BIA noted that all of the facts set forth in the motion had been available to respondent at the time of the deportation hearing, except for the 1984 visit, which may have been in fact a purely social visit. The Court of Appeals consolidated respondent’s petitions for review and affirmed the deportation order, but reversed the order denying the motion to reopen and remanded for further proceedings. Stating that the sole issue was whether respondent had made a prima facie case for reopening, the court ruled that the appropriate standard of judicial review was the strict standard that would be applied when passing on a motion for summary judgment, rather than an abuse-of-discretion standard. Held: 1. Regardless of what may be the appropriate standard of judicial review when the BIA holds that the movant for reopening deportation proceedings has not established a prima facie case for the underlying relief sought (an issue not decided here), the abuse-of-discretion standard of review is appropriate when the BIA’s denial of a motion to reopen INS v. ABUDU 95 94 Syllabus is based on its finding that the movant has not introduced previously unavailable, material evidence or, in an asylum application case, that the movant has not reasonably explained his failure to apply for asylum initially. The reasons why motions to reopen are disfavored in deportation proceedings are comparable to those that apply to petitions for rehearing and to motions for new trials on the basis of newly discovered evidence— particularly the strong public interest in bringing litigation to a close as promptly as is consistent with the interest in giving the adversaries a fair opportunity to develop and present their respective cases. The appropriate analogy is not a motion for summary judgment but, instead, a motion for a new trial in a criminal case on the basis of newly discovered evidence, as to which the moving party bears a heavy burden. Pp. 104-110. 2. If respondent had made a timely application for asylum, supported by the factual allegations and exhibits set forth in his motion to reopen, the Immigration Judge would have been required to grant him an evidentiary hearing. However, an alien who has already been found deportable has a much heavier burden when he first advances his request for asylum in a motion to reopen. The BIA did not abuse its discretion when it held that respondent had not reasonably explained his failure to apply for asylum prior to the completion of the initial deportation proceeding. Pp. 110-111. 802 F. 2d 1096, reversed. Stevens, J., delivered the opinion of the Court, in which all other Members joined, except Kennedy, J., who took no part in the consideration or decision of the case. Robert H. Klonoff argued the cause for petitioner. With him on the briefs were Solicitor General Fried, Assistant Attorney General Willard, Deputy Solicitor General Wallace, and Marshall Tamor Golding. Dorothy A. Harper argued the cause and filed a brief for respondent. * *Briefs of amici curiae urging affirmance were filed for the American Immigration Lawyers Association by Robert D. Baizer; and for Centro Presente, Inc., et al. by Alan J. Rom and Robert Rubin. Arthur C. Helton filed a brief for the Lawyers Committee for Human Rights as amicus curiae. 96 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. Justice Stevens delivered the opinion of the Court. Regulations promulgated by the Attorney General authorize deportable aliens to file motions to reopen their deportation proceedings to request asylum on the basis of newly discovered evidence. Denials of such motions are subject to judicial review in the United States courts of appeals. The question in this case is whether those courts should review such Board of Immigration Appeals (BIA) denials under an abuse-of-discretion standard, as petitioner contends, or under the strict standard that would be applied when passing on a motion for summary judgment, as the Court of Appeals held. 802 F. 2d 1096 (CA9 1986). Consistently with our prior cases confirming the BIA’s broad discretion in considering motions to reopen, we conclude that the abuse-of-discretion standard applies and therefore reverse the judgment of the Court of Appeals. I Respondent, a native and citizen of Ghana, first entered the United States in 1965 as a student. While attending medical school in 1973, he spent his summer vacation in Ghana, and then reentered the United States on a student visa that authorized him to remain until 1976. After becoming a licensed physician, he married an American citizen and overstayed his visa. In 1981, he pleaded guilty to charges of attempting to obtain narcotic drugs (Demerol) by fraud. In due course, deportation proceedings were initiated, and respondent designated England as the country of deportation if necessary and expressly declined to seek asylum as a refugee. On July 1, 1982, the Immigration Judge ordered him deported,1 and on August 14, 1984, the BIA dismissed his appeal. 1 Respondent had declined to apply for asylum, but had argued instead that his marriage to a United States citizen made him eligible for an adjustment of status under 8 U. S. C. § 1255(a). The Immigration Judge denied the adjustment-of-status application, App. to Pet. for Cert. 28a, because respondent’s drug conviction constituted a nonwaivable ground of exclud INS v. ABUDU 97 94 Opinion of the Court Respondent filed a petition for review in the Court of Appeals for the Ninth Circuit. While that petition was pending, on February 1, 1985, respondent filed a motion with the BIA requesting a reopening of his deportation proceeding to enable him to apply for asylum and a withholding of deportation. In that motion, which was supported by affidavits and other exhibits, respondent claimed that he had a well-founded fear that if England did not accept him and he was returned to Ghana, his life and freedom would be threatened by the regime in power. His fear was based largely on the facts that after the current government seized power in 1981, it had carried out a systematic campaign of persecution against its political enemies and that respondent’s brother and certain close friends were among the targets of that campaign. Moreover, in 1984, respondent had received an unsolicited and surprise visit from a former acquaintance who had become a high official in the Ghana government. The visitor invited respondent to return to Ghana, ostensibly because qualified physicians are in short supply, but respondent concluded that his visitor actually wanted to entice him to return in order to force him to disclose the whereabouts of his brother and other enemies of the government. The BIA first stated the standard for granting motions to reopen deportation proceedings in cases such as this: “A motion to reopen deportation proceedings for the purpose of applying for asylum or withholding of deportation will only be granted where prima facie eligibility for such relief has been established and where the alien has reasonably explained his failure to assert the claim prior to completion of the deportation hearing. 8 CFR §208.11. ... Nor will reopening be granted unless the evidence sought to be offered is material, was not available, and could not have been discovered or presented at ability, 8 U. S. C. § 1182(a)(23) (1982 ed., Supp. IV), and the BIA affirmed this determination, App. to Pet. for Cert. 24a. 98 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. the time of the original hearing. 8 CFR §§3.2, 103.5, 242.22 . . . .” App. to Pet. for Cert. 15a. The BIA then denied respondent’s motion to reopen on both §208.11 and prima facie case grounds, either of which would have sufficed. First, it held that respondent had not reasonably explained his failure to request asylum prior to the completion of the deportation proceedings, as required by Immigration and Naturalization Service (INS or Agency) regulations.2 In support of this holding, the BIA noted that the Immigration Judge had continued the deportation hearing from November 10, 1981, until April 29, 1982, to give respondent an opportunity to apply for asylum, but that respondent had expressly declined to do so, and further, that all of the facts set forth in the motion—except for the surprise visit in 1984—had been available to respondent at the time of the hearing. With respect to the visit, the BIA observed that “the respondent’s visitor was admittedly a longtime friend of the respondent’s who in fact may have been paying a purely social visit.” App. to Pet. for Cert. 17a. Second, the BIA also held that the facts set forth in the motion to reopen did not show either a clear probability of persecution within the meaning of § 243(h) of the Immigration and Nationality Act (Act), 66 Stat. 214, as amended, 8 2 Title 8 CFR §208.11 (1987) provides in part: “[A motion to reopen to request asylum] must reasonably explain the failure to request asylum prior to the completion of the exclusion or deportation proceeding. If the alien fails to do so, the asylum claim shall be considered frivolous, absent any evidence to the contrary.” Title 8 CFR § 3.2 (1987) provides in part: “Motions to reopen in deportation proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing; nor shall any motion to reopen for the purpose of affording the alien an opportunity to apply for any form of discretionary relief be granted . . . unless the relief is sought on the basis of circumstances which have arisen subsequent to the hearing.” INS v. ABUDU 99 94 Opinion of the Court U. S. C. § 1253(h),3 or that respondent was eligible for asylum as a “refugee,” see 8 U. S. C. § 1101(a)(42), under §208 of the Act, 8 U. S. C. § 1158.4 In support of this holding, the BIA noted that no affidavit from his brother had been 3 See INS v. Stevie, 467 U. S. 407 (1984) (mandatory withholding of deportation under § 243(h) only if alien can establish that his “life or freedom would be threatened” on account of race, religion, political opinion, etc.). Although respondent moved for reopening to apply for both asylum and withholding of deportation, Motion to Reopen to Permit Respondent to Apply for Asylum and Request Withholding of Deportation in No. 86-7075 (CA9), p. 1 (pp. 14-19 of Pleadings of the Record), the focus throughout the proceedings has been on the asylum application, and our discussion will maintain the same focus. This focus should not obscure the fact that our holding today applies to BIA reopening decisions regarding both asylum and withholding of deportation requests. First, the standard for granting reopening under 8 CFR § 3.2 (1987) is the same for both asylum and withholding of deportation requests; accordingly, the BIA’s determination regarding whether “evidence sought to be offered [on reopening] is material and was not available and could not have been discovered or presented at the former hearing,” ibid., is subject to an abuse-of-discretion standard of review regardless of the underlying substantive claim asserted by the alien. Further, since all asylum requests “made after the institution of exclusion or deportation proceedings . . . shall also be considered as requests for withholding exclusion or deportation pursuant to section 243(h) of the Act,” 8 CFR § 208.3(b) (1987); since, normally, “the relevant evidence will be identical on both claims,” 802 F. 2d 1096, 1102 (CA9 1986) (case below), see Matter of Mogharrabi, Interim Dec. No. 3028, p. 12 (BIA June 12, 1987) (“[T]he core of evidence and testimony presented in support of the asylum and withholding applications will in almost every case be virtually the same”); and since it is easier to prove well-founded fear of persecution than clear probability of persecution, the BIA’s application of 8 CFR § 208.11 (1987), which on its face applies only to asylum requests on reopening, will also usually be dispositive of its decision whether to reopen to permit a withholding of deportation request. In sum, our holding today is that a court of appeals should review the BIA only for abuse of discretion when the Board denies reopening on §3.2 or §208.11 grounds, regardless of the underlying basis of the alien’s request. See n. 10, infra. 4 See INS v. Cardoza-Fonseca, 480 U. S. 421 (1987) (“well-founded fear of persecution” contains subjective and objective components, but does not require proof that persecution is more likely than not to occur if alien is deported). 100 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. offered, and that there was no satisfactory explanation of the details of respondent’s relationship with the enemies of the government or the reasons why that relationship might lead to his persecution. The BIA concluded that his conjectures about probable threats were too speculative to constitute a prima facie showing of eligibility for either asylum or withholding of deportation. When respondent petitioned for review of the order denying his motion to reopen, the Court of Appeals consolidated that petition with his pending petition to review the original order of deportation. The court affirmed the deportation order,5 but reversed the order denying the motion to reopen and remanded for an evidentiary hearing on the asylum and withholding of deportation claims. In support of the latter holding, the court began by noting that although the BIA has “wide discretion” to deny motions to reopen, and although such denials are normally reviewed only for “abuse of discretion,” in this case “the sole issue” was whether respondent had “presented a prima facie case for reopening.” 802 F. 2d, at 1099-1100. The court stated that “[w]hen the Board restricts its decision [refusing to reopen] to whether the alien has established a prima facie case it is only this basis for its decision that we review.” Id., at 1100 (internal quotation omitted). The court then reasoned: “Upon motion to reopen, the Board must draw reasonable inferences from the facts in favor of the petitioner. A motion to reopen is analogous to a motion for summary judgment; each is accompanied by affidavits and other evidentiary material and may be granted if the motion presents ‘proof that will support the desired findings [of a prima facie case] . . . until it is contradicted or overruled by other evidence.’- Maroufi v. INS, 772 F. 2d 597, 599 (9th Cir. 1985). In both cases, inferences are to Respondent did not cross-petition for a writ of certiorari from this holding. INS v. ABUDU 101 94 Opinion of the Court be drawn in favor of the party whose entitlement to further proceedings is at stake: the non-moving party under Fed. R. Civ. P. 56 and the alien seeking reopening under 8 CFR 3.2. See, e. g., U. S. v. Diebold, Inc., 369 U. S. 654, 655 (1962) (‘choice of inferences to be drawn from the subsidiary facts contained in the affidavits . . . submitted [is inappropriate]. On summary judgment the inferences to be drawn from the underlying facts contained in such materials must be viewed in the light most favorable to the party opposing the motion.’) . . . “[F]or purposes of the limited screening function of motions to reopen, the BIA must draw all reasonable inferences in favor of the alien unless the evidence presented is ‘inherently unbelievable.’ Hernandez-Ortiz [v. INS], 777 F. 2d [509,] 514 [CA9 1985]. “While the visit from the Ghanian official could be viewed as benign, it could also be viewed, as Dr. Abudu suggests, as threatening. Viewing the inferences in favor of the petitioner as we must, we conclude that the affidavits made out a prima facie case of well-founded fear of persecution.” Id., at 1101-1102 (citations omitted). Although the BIA had denied respondent’s motion to reopen both on the ground that he had failed to make out a prima facie case for asylum and on the ground that he had failed to explain reasonably his decision not to request asylum in the first instance, and although the Government had contended in the Court of Appeals that “petitioner neither offered a reasonable explanation for the belatedness of his application for asylum and withholding of deportation nor made a prima facie showing of entitlement to such relief,” Brief for Respondent in Nos. 84-7686 and 86-7075 (CA9), p. 16 (emphasis added), the Court of Appeals did not discuss, as a separate matter, the “failure to explain” ground in the BIA’s decision. The Court of Appeals’ statement that “the 102 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. sole issue [in this case] is whether petitioner presented a prima facie case for reopening,” 802 F. 2d, at 1100, reveals that the court seems to have blended the two grounds into one.6 The petition for certiorari described this case as involving “the extent to which a reviewing court is required to defer to the BIA’s ruling on a motion to reopen deportation proceedings.” Pet. for Cert. 8. Like the Court of Appeals’ opinion, the questions presented, though, did not clearly separate the two grounds upon which the BIA had denied respondent’s motion to reopen,7 and respondent reported to us, incor 6 Early in its opinion, the Court of Appeals did state, correctly, that the BIA had denied reopening both because of respondent’s failure to explain the belated asylum application and because of his failure to make out a prima facie showing for asylum relief. 802 F. 2d, at 1099. The Court of Appeals later commented: “The Board incorrectly found that all the considerations upon which Dr. Abudu relied in making his asylum and prohibition against deportation claims were in existence at the time he made the determination not to apply for such relief.” Id., at 1102. This statement was erroneous. The Board’s actual finding was: “We are satisfied from a careful review of the record that the respondent has not reasonably explained his failure to file his application at the hearing. 8 CFR §208.11; Matter of Escobar, 18 I&N Dec. 412 (BIA 1979). He was aware at the time of the hearing of the problems which his brother and other associates were allegedly facing, yet apparently those considerations did not then prompt him to seek asylum. Now, in seeking reopening, he relies heavily on those same considerations. Given that so much of the evidence upon which the respondent now bases his persecution claim was available at the time of the hearing, we are not persuaded that the visit by a member of the present government was by itself so alarming that it explains the respondent’s failure to apply for asylum at the hearing.” App. to Pet. for Cert. 17a. It may be that the Court of Appeals’ confusion regarding the BIA’s holding led to its addressing the two separate grounds on which the BIA had relied as if they were one. ’“QUESTIONS PRESENTED “1. Whether a decision by the Board of Immigration Appeals (BIA) denying an alien’s motion to reopen deportation proceedings on the ground INS v. ABUDU 103 94 Opinion of the Court rectly, that “the sole question before the Ninth Circuit was whether the Respondent had established a prima facie case of a well founded fear of persecution.” Brief in Opposition 20. Petitioner’s reply memorandum, though, eliminated any possible doubts about the issue it was asking us to resolve: “[T]he important question for present purposes [is] whether the BIA correctly found that respondent had not offered significant new evidence and had not adequately explained his previous failure to seek asylum or withholding of deportation (see 8 CFR 3.2, 208.11).” Reply Memorandum for Petitioner 2, n. 2.8 that the alien did not make a prima facie showing of entitlement to relief must be affirmed if it is plausible and not arbitrary. “2. Whether the BIA, in ruling on an alien’s motion to reopen deportation proceedings, is required to draw all reasonable inferences in favor of the alien.” Pet. for Cert. (I). 8 Thus, this case comes to us in a different posture than did INS v. Stevie, 467 U. S. 407 (1984). There, the BIA had issued an opinion denying reopening to the alien movant on alternative grounds similar to those relied upon by the BIA in today’s case. That is, the BIA in Stevie had held (1) that Stevie had failed to show that the new evidence was unavailable at the initial deportation hearing, and thus could not overcome the threshold of 8 CFR § 3.2 (1987), and (2) that Stevie had “failed to submit prima facie evidence” of the substantive ground on which he sought relief (that his freedom would be threatened upon return to Yugoslavia on account of his political opinion). INS v. Stevie, supra, at 411, and n. 3. The Court of Appeals in Stevie held that a change in the law between Stevie’s initial deportation hearing and his motion to reopen had changed the legal standard for the underlying substantive claim, and thus that Stevie was entitled to a hearing under the new, more lenient standard. We reversed, holding that the standard for gaining mandatory withholding of deportation under § 243(h) had not been altered by the Refugee Act of 1980. See n. 3, supra. Thus, although the BIA had relied upon alternative grounds in Stevie similar to those it relied upon in respondent’s case—and accordingly one could suggest that we should decide the underlying substantive issue here just as we did in Stevie—the crucial difference between the two cases is that in Stevie the issue whether sufficient new evidence was available to require reopening depended upon a determination whether the underlying substantive standard for withholding of deportation had been altered, while in today’s case the issue whether respondent reasonably explained his 104 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. Thus, we granted certiorari, 480 U. S. 930 (1987), not to decide the substantive issues of what constitutes a prima facie case for establishing eligibility for asylum on the basis of a well-founded fear of persecution, or of what standard of review applies, either initially or on motion to reopen, when the BIA rests its grant or denial of relief squarely on prima facie case grounds,* 9 but rather to determine the standard a Court of Appeals must apply when reviewing the BIA’s conclusion that an alien has not reasonably explained his failure to assert his asylum claim at the outset. II There are at least three independent grounds on which the BIA may deny a motion to reopen. First, it may hold that the movant has not established a prima facie case for the underlying substantive relief sought. The standard of review of such a denial is not before us today, as we have explained. Second, the BIA may hold that the movant has not introduced previously unavailable, material evidence, 8 CFR §3.2 failure to apply for asylum initially does not so depend upon how one states the underlying substantive standard, but rather may be resolved as an independent matter. Unlike the petition for writ of certiorari and reply memorandum in today’s case, which asked us to resolve an issue regarding agency discretion on reopening and not the underlying substantive standard for determining eligibility for asylum, the petition for writ of certiorari in Stevie, as well as the brief in opposition and reply memorandum, discussed only the nature of the underlying substantive standard. 9 Just last Term we stated that “[t]here is obviously some ambiguity in a term like ‘well-founded fear’ which can only be given concrete meaning through a process of case-by-case adjudication.” INS v. Cardoza-Fonseca, 480 U. S., at 448. The BIA has begun this ^ost-Cardoza-Fonseca process of giving meaning to “well-founded fear of persecution.” Matter of Mog-harrabi, Interim Dec. No. 3028, at 9 (after canvassing various approaches taken by Courts of Appeals, adopts general standard set forth by Fifth Circuit in Guevara Flores v. INS, 786 F. 2d 1242 (1986), cert, denied, 480 U. S. 930 (1987), viz., “that an applicant for asylum has established a well-founded fear if he shows that a reasonable person in his circumstances would fear persecution”). We express no opinion on the BIA’s recent formulation. INS v. ABUDU 105 94 Opinion of the Court (1987), or, in an asylum application case, that the movant has not reasonably explained his failure to apply for asylum initially, 8 CFR §208.11 (1987). (The issues under the two regulations may, of course, both involve the incremental significance of whatever allegedly new evidence is introduced by the movant.) We decide today that the appropriate standard of review of such denials is abuse of discretion. Third, in cases in which the ultimate grant of relief is discretionary (asylum, suspension of deportation, and adjustment of status, but not withholding of deportation), the BIA may leap ahead, as it were, over the two threshold concerns (prima facie case and new evidence/reasonable explanation), and simply determine that even if they were met, the movant would not be entitled to the discretionary grant of relief. We have consistently held that denials on this third ground are subject to an abuse-of-discretion standard. INS v. Rios-Pineda, 471 U. S. 444 (1985) (suspension of deportation); INS v. Baga-masbad, 429 U. S. 24 (1976) (adjustment of status). We have discussed 8 CFR § 3.2 (1987), which is one of the two regulations before us today, in dicta: “[Section 3.2] is framed negatively; it directs the Board not to reopen unless certain showings are made. It does not affirmatively require the Board to reopen the proceedings under any particular condition. Thus, the regulations may be construed to provide the Board with discretion in determining under what circumstances proceedings should be reopened.” INS v. Jong Ha Wang, 450 U. S. 139, 144, n. 5 (1981). This footnote, and our subsequent citations of it, INS v. Rios-Pineda, supra, at 449; INS v. Phinpathya, 464 U. S. 183, 188, n. 6 (1984),10 stand for the proposition that the BIA 10 Respondent attempts to distinguish Jong Ha Wang, Phinpathya, and Rios-Pineda, by arguing that the key standard for determining eligibility for suspension of deportation (whether the deportation would result in extreme hardship to the alien) is itself established at the discretion of the BIA, see 8 U. S. C. §§ 1254(a)(1) and 1103; 8 CFR §2.1 (1987); INS 106 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. has discretion to deny a motion to reopen even if the alien has made out a prima facie case for relief; that is, our prior glosses on § 3.2 have served as support for an abuse-of-discre-tion standard of review for the third type of denial, where the BIA simply refuses to grant relief that is itself discretionary in nature, even if the alien has surmounted the requisite thresholds of prima facie case and new evidence/reasonable explanation. But even before reaching the ultimate decision on an alien’s application for discretionary relief from deportation, or before reaching the point at which mandatory relief is called for in a withholding of deportation case, the BIA’s discretion may be called into play regarding the specific, evidentiary requirements of §§ 3.2 and 208.11. That is, in a given case the BIA may determine, either as a sufficient ground for denying relief or as a necessary step toward granting relief, whether v. Jong Ha Wang, 450 U. S. 139, 144-146 (1981), whereas the standard for determining eligibility for asylum is determined by statute, see 8 U. S. C. §§ 1158 and 1101(a)(42)(A). Thus, respondent continues, Jong Ha Wang and its successor cases are of limited value because they all arose in the suspension of deportation setting, where the BIA’s discretion to determine eligibility is greater than it is in the asylum setting. Without commenting on the validity of respondent’s conclusion regarding the varying degrees of discretion the BIA may exercise in suspension of deportation and asylum settings, we note that even if respondent’s point were correct, it would be irrelevant for purposes of this case. The BIA’s regulation that provides for reopening of deportation proceedings, 8 CFR § 3.2 (1987), applies to all motions to reopen, regardless of the underlying substantive basis of the alien’s claim. Further, the separate regulation relied on by the BIA in denying respondent’s motion to reopen, 8 CFR §208.11 (1987), addresses not the underlying substantive standard for an asylum claim, but rather the additional threshold an alien must overcome on a motion to reopen to make such a claim. As we are simply defining the standard a court of appeals must apply in reviewing the BIA’s denial of reopening on §§3.2 and 208.11 grounds—and not the standard for establishing eligibility for asylum, whether initially or on motion to reopen—whatever distinction may exist regarding the BIA’s discretion in determining eligibility for suspension of deportation and for asylum does not affect the question we address today. See n. 3, supra. INS v. ABUDU 107 94 Opinion of the Court the alien has produced previously unavailable, material evidence (§3.2), and, in asylum cases, whether the alien has reasonably explained his or her failure to request asylum initially (§208.11). We hold today that such decisions are subject to an abuse-of-discretion standard of review. The reasons why motions to reopen are disfavored in deportation proceedings are comparable to those that apply to petitions for rehearing,11 and to motions for new trials on the basis of newly discovered evidence.11 12 There is a strong public interest in bringing litigation to a close as promptly as is consistent with the interest in giving the adversaries a fair opportunity to develop and present their respective cases. The relevance of this interest to deportation proceedings was pointedly explained in an opinion that we recently quoted with approval: 11 See, e. g., Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U. S. 281, 294-296 (1974) (reopening of Interstate Commerce Commission licensing hearing only “in the most extraordinary circumstances”); Cities of Campbell v. FERC, 248 U. S. App. D. C. 267, 278, 770 F. 2d 1180, 1191 (1985) (reopening of Federal Energy Regulatory Commission evidentiary hearing “a matter of ageney discretion, . . . reserved for extraordinary circumstances”); Duval Corp. v. Donovan, 650 F. 2d 1051, 1054 (CA9 1981) (reconsideration of Federal Mine Safety and Health Review Commission order “addressed to that body’s discretion” and “[d]e-nial of such a petition should be overturned only upon a showing of the clearest abuse of discretion”); Nance n. EPA, 645 F. 2d 701, 717 (CA9) (“The administrative process cannot provide for the constant reopening of the record to consider new facts, . . . and it is for the agency, not this court to determine when such reopening is appropriate, unless the failure to reconsider can be characterized an abuse of discretion”), cert, denied sub nom. Crow Tribe of Indians, Montana v. EPA, 454 U. S. 1081 (1981). 12 See, e. g., United States v. Tucker, 836 F. 2d 334, 336 (CA7 1988) (new trial only if newly discovered evidence “would probably lead to an acquittal in the event of a trial”); United States v. Vergara, 714 F. 2d 21, 22 (CA5 1983) (“[Standard for review of the denial of a motion for new trial on [grounds of newly discovered evidence] rests in the sound discretion of the trial court”); 3 C. Wright, Federal Practice and Procedure §557, p. 315 (1982) (motions for new trial on grounds of newly discovered evidence “are not favored by the courts and are viewed with great caution”). 108 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. “‘If INS discretion is to mean anything, it must be that the INS has some latitude in deciding when to reopen a case. The INS should have the right to be restrictive. Granting such motions too freely will permit endless delay of deportation by aliens creative and fertile enough to continuously produce new and material facts sufficient to establish a prima facie case. It will also waste the time and efforts of immigration judges called upon to preside at hearings automatically required by the prima facie allegations [, a requirement not disputed in this case].’” INS v. Jong Ha Wang, 450 U. S., at 144, n. 5 (quoting from Judge Wallace’s dissenting opinion in Villena v. INS, 622 F. 2d 1352, 1362 (CA9 1980) (en banc) (CA9 companion case to Jong Ha Wang). As we have detailed above, the Court of Appeals in this case purported to decide “whether [respondent] presented a prima facie case for reopening.” 802 F. 2d, at 1100. In so doing, the Court of Appeals set out a standard for BIA motions to reopen deportation proceedings, see supra, at 100-101, that appears to have conflated the quite separate issues whether the alien has presented a prima facie case for asylum with whether the alien has reasonably explained his failure to apply for asylum initially and has indeed offered previously unavailable, material evidence.13 To the extent that 13 See, e. g., Aviles-Torres v. INS, 790 F. 2d 1433, 1436 (CA9 1986) (prima facie showing of entitlement to relief and explanation of failure to present evidence earlier are separate elements of reopening motion); Bahramnia v. INS, 782 F. 2d 1243, 1245 (CA5) (requirements of §§ 3.2 and 208.11 “additional... to the establishment of a prima facie case of eligibility”), cert, denied, 479 U. S. 930 (1986); Ananeh-Firempong v. INS, 766 F. 2d 621, 627 (CAI 1985) (§3.2 requirement separate from prima facie case requirement); Duran v. INS, 756 F. 2d 1338, 1340, n. 1 (CA9 1985) (two requirements for reopening to request asylum: prima facie case of eligibility for relief and reasonable explanation for failure to apply initially, under §208.11); Samimi v. INS, 714 F. 2d 992, 994 (CA9 1983) (“To justify reopening on the basis of an asylum claim, a petitioner must make a prima facie showing that he is eligible for the relief sought, . . . and explain INS v. ABUDU 109 94 Opinion of the Court the reasoning of the Court of Appeals addresses the issue of reopening rather than the issue of prima facie case for asylum,14 15 it is not supported by our cases, and has been consistently rejected by other Circuits and by other panels in the Ninth Circuit.16 We have never suggested that all ambigu his failure to raise the asylum claim in the previous proceeding. 8 CFR §§ 3.2, 208.11 (1983). Somewhat related to this second requirement is the requirement that the petitioner offer new, material evidence that could not have been discovered and presented at the former hearing. 8 CFR §§ 3.2, 103.5, 242.22 (1983)”). 14 As we have stated throughout the opinion, to the extent that the Court of Appeals’ reasoning addresses the issue of prima facie case for asylum, we offer no view of its validity, save our observation, infra, at 111, that the untimeliness of an asylum claim may be relevant to the BIA’s decision as to the prima facie case issue on reopening. 15 See, e. g., Torres-Hernandez v. INS, 812 F. 2d 1262, 1264 (CA9 1987) (abuse-of-discretion standard applied to denial of motion to reopen on § 3.2 grounds); Sakhavat v. INS, 796 F. 2d 1201, 1203 (CA9 1986) (abuse-of-discretion standard applied to denial of reopening on §208.11 grounds); Conti v. INS, 780 F. 2d 698, 701 (CA7 1985) (abuse-of-discretion standard applied to denial of reopening on §3.2 grounds); Ananeh-Firempong n. INS, supra, at 626 (abuse-of-discretion standard applied to denial of motion to reopen in which alien complied with § 3.2 by alleging new facts); Riasati v. INS, 738 F. 2d 1115, 1119 (CAIO 1984) (abuse-of-discretion standard applied to denial of motion to reopen on § 3.2 materiality grounds); Motamedi v. INS, 713 F. 2d 575, 576 (CAIO 1983) (BIA abused its discretion in denying motion to reopen when alien had complied with § 208.11 by reasonably explaining his failure to request asylum initially); LeBlanc v. INS, 715 F. 2d 685, 689 (CAI 1983) (suggesting that our holding in INS v. Jong Ha Wang, 450 U. S. 139 (1981), permits the BIA, pursuant to § 3.2, to “decide that it will not reopen in cases such as the one at bar, where the movant may have made out a prima facie case, but the Board is persuaded that for other assertedly legitimate reasons it would not, as a matter of discretion, allow suspension”); Samimi v. INS, supra, at 994-995 (abuse-of-discretion standard applied to denial of reopening on §§ 3.2 and 208.11 grounds); Chae Kim Ro v. INS, 670 F. 2d 114 (CA9 1982) (abuse-of-discretion standard applied to denial of reopening on § 3.2 grounds); Au Yi Lau v. INS, 181 U. S. App. D. C. 99, 107, 555 F. 2d 1036, 1044 (1977) (“At most, [§ 3.2] dictates that the Board consider any new circumstances advanced in support of a motion to reopen, and that the Board not abuse its discretion in determining whether the circumstances are sufficient to justify granting of 110 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. ities in the factual averments must be resolved in the movant’s favor, and we have never analogized such a motion to a motion for summary judgment. The appropriate analogy is a motion for a new trial in a criminal case on the basis of newly discovered evidence, as to which courts have uniformly held that the moving party bears a heavy burden. See, e. g., Taylor n. Illinois, 484 U. S. 400, 414, n. 18 (1988) (citing cases). Moreover, this is the tenor of the Attorney General’s regulations, which plainly disfavor motions to reopen. See n. 2, supra. In sum, although all adjudications by administrative agencies are to some degree judicial and to some degree political* 16—and therefore an abuse-of-discretion standard will often apply to agency adjudications not governed by specific statutory commands—INS officials must exercise especially sensitive political functions that implicate questions of foreign relations,17 and therefore the reasons for giving deference to agency decisions on petitions for reopening or reconsideration in other administrative contexts apply with even greater force in the INS context. Ill We have no doubt that if respondent had made a timely application for asylum, supported by the factual allegations and exhibits set forth in his motion to reopen, the Immigration Judge would have been required to grant him an eviden the motion”); see also, e. g., Brown v. INS, 249 U. S. App. D. C. 333, 337, 775 F. 2d 383, 387 (1985) (abuse-of-discretion standard applied to denial of motion to reopen on § 3.8 grounds due to lack of evidentiary support). 16 See, e. g., Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U. S. 50, 67-70 (1982) (plurality opinion) (Constitution authorizes Congress to delegate adjudication of “public rights” to non-Article HI judges); see also id., at 91 (Rehnquist, J., concurring in judgment) (“public rights” doctrine might sustain other powers granted non-Article III judges under the Bankruptcy Act of 1978, but not the adjudication of appellant’s contract suit). 17 Cf., e. g., Hampton v. Mow Sun Wong, 426 U. S. 88, 101-102, n. 21 (1976) (“[T]he power over aliens is of a political character and therefore subject only to narrow judicial review”). INS v. ABUDU 111 94 Opinion of the Court tiary hearing. See 8 CFR §§208.6 (1987) (requiring appearance before immigration officer for asylum application) and 208.10(c) (permitting presentation of evidence in deportation proceedings). We are equally convinced, however, that an alien who has already been found deportable has a much heavier burden when he first advances his request for asylum in a motion to reopen. In passing on the sufficiency of such a motion, the BIA is entitled to attach significance to its untimeliness, both for the purpose of evaluating the probability that the movant can prove his allegations and for the purpose of determining whether the movant has complied with the regulation requiring a reasonable explanation for the failure to request asylum during the deportation proceeding. In this case we have no hesitation in concluding that the BIA did not abuse its discretion when it held that respondent had not reasonably explained his failure to apply for asylum prior to the completion of the initial deportation proceeding. The surprise visit in 1984 was admittedly an event with uncertain meaning, but it was neither arbitrary nor unreasonable for the BIA to regard it as not providing any significant additional support for a claim that respondent had not previously considered strong enough to prompt him to assert that he had a well-founded fear of persecution. The portion of the Court of Appeals’ judgment that reversed the BIA order denying the motion to reopen is reversed. It is so ordered. Justice KennEPY took no part in the consideration or decision of this case. 112 OCTOBER TERM, 1987 Syllabus 485 U. S. CITY OF ST. LOUIS v. PRAPROTNIK CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 86-772. Argued October 7, 1987—Decided March 2, 1988 Two years after respondent, a management-level employee in one of petitioner city’s agencies, successfully appealed a temporary suspension to petitioner’s Civil Service Commission (Commission), he was transferred to a clerical position in another city agency, from which he was laid off the next year. In respondent’s suit under 42 U. S. C. § 1983, the jury found petitioner liable on the theory that respondent’s First Amendment rights had been violated through retaliatory actions taken in response to his suspension appeal. The Court of Appeals affirmed the judgment entered on this verdict, finding that the jury had implicitly determined that respondent’s layoff was brought about by an unconstitutional city policy. Applying a test under which a “policymaker” is one whose employment decisions are “final” in the sense that they are not subjected to de novo review by higher ranking officials, the court concluded that petitioner could be held liable for adverse personnel decisions made by respondent’s supervisors. Held: The judgment is reversed, and the case is remanded. 798 F. 2d 1168, reversed and remanded. Justice O’Connor, joined by The Chief Justice, Justice White, and Justice Scalia, concluded that: 1. Petitioner’s failure to timely object under Federal Rule of Civil Procedure 51 to a jury instruction on municipalities’ § 1983 liability for their employees’ unconstitutional acts does not deprive this Court of jurisdiction to determine the proper legal standard for imposing such liability. The same legal issue was raised by petitioner’s motions for summary judgment and a directed verdict, was considered and decided by the Court of Appeals, and is likely to recur in § 1983 litigation against municipalities. Review in this Court will not undermine the policy of judicial efficiency that underlies Rule 51. Pp. 118-121. 2. The Court of Appeals applied an incorrect legal standard for determining when isolated decisions by municipal officials or employees may expose the municipality to § 1983 liability. The identification of officials having “final policymaking authority” is a question of state (including local) law, rather than a question of fact for the jury. Here, it appears that petitioner’s City Charter gives the authority to set employment policy to the Mayor and Aidermen, who are empowered to enact ordinances, ST. LOUIS v. PRAPROTNIK 113 112 Syllabus and to the Commission, whose function is to hear employees’ appeals. Petitioner cannot be held liable unless respondent proved the existence of an unconstitutional policy promulgated by officials having such authority. The Mayor and Aidermen did not enact an ordinance permitting retaliatory transfers or layoffs. Nor has the Commission indicated that such actions were permissible; it has, on the contrary, granted respondent at least partial relief in a series of appeals from adverse personnel decisions. The Court of Appeals’ findings that the decisions of respondent’s supervisors were not individually reviewed for “substantive propriety” by higher supervisory officials, and were accorded substantial deference by the Commission on appeal, are insufficient to support the conclusion that the supervisors had been delegated the authority to establish transfer and layoff policy. When a subordinate’s discretionary decisions are constrained or subjected to review by authorized policymakers, they, and not the subordinate, have final policymaking authority. Positing a delegation based on their mere acquiescence in, or failure to investigate the basis of, the subordinate’s decisions does not serve § 1983’s purposes where (as here) the wrongfulness of those decisions arises from a retaliatory motive or other unstated rationale. Pp. 121-131. Justice Brennan, joined by Justice Marshall and Justice Blackmun, agreed that respondent’s supervisor at his first agency did not possess delegated authority to establish final employment policy such that petitioner could be held liable under § 1983 for the allegedly unlawful decision to transfer respondent to a dead-end job, but concluded that in any case in which the policymaking authority of a municipal tortfeasor is in doubt, although state law will naturally be the appropriate starting point, ultimately the factfinder must determine where such policymaking authority actually resides, and not simply where the applicable state law purports to put it. Justice Brennan also concluded that the “custom or usage” doctrine cannot compensate for the inherent inflexibility of an approach that relies exclusively on state law, for that doctrine simply does not apply to isolated unconstitutional acts by subordinates having de facto, but not statutory, final policymaking authority; that a subordinate’s decisions are not rendered nonfinal simply because they are subject to some form of review, however limited; and that the question is open whether a municipality can be subjected to liability for a policy that, while not unconstitutional in and of itself, may give rise to constitutional deprivations. Pp. 132-147. O’Connor, J., announced the judgment of the Court and delivered an opinion, in which Rehnquist, C. J., and White and Scalia, JJ., joined. Brennan, J., filed an opinion concurring in the judgment, in which Marshall and Blackmun, JJ., joined, post, p. 132. Stevens, J., filed a dis 114 OCTOBER TERM, 1987 Opinion of O’Connor, J. 485 U. S. senting opinion, post, p. 147. Kennedy, J., took no part in the consideration or decision of the case. James J. Wilson argued the cause for petitioner. With him on the briefs was Julian L. Bush. Charles R. Oldham argued the cause for respondent. With him on the brief were Julius LeVonne Chambers and Eric Schnapper* Justice O’Connor announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Justice White, and Justice Scalia join. This case calls upon us to define the proper legal standard for determining when isolated decisions by municipal officials or employees may expose the municipality itself to liability under 42 U. S. C. § 1983. I The principal facts are not in dispute. Respondent James H. Praprotnik is an architect who began working for petitioner city of St. Louis in 1968. For several years, respondent consistently received favorable evaluations of his job performance, uncommonly quick promotions, and significant increases in salary. By 1980, he was serving in a management-level city planning position at petitioner’s Community Development Agency (CDA). The Director of CDA, Donald Spaid, had instituted a requirement that the agency’s professional employees, including architects, obtain advance approval before taking on private clients. Respondent and other CDA employees ob *Benna Ruth Solomon, Joyce Holmes Benjamin, Beate Bloch, and Carter G. Phillips filed a brief for the International City Management Association et al. as amici curiae urging reversal. Michael H. Gottesman, David M. Silberman, and Laurence Gold filed a brief for the American Federation of Labor and Congress of Industrial Organizations et al. as amici curiae urging affirmance. Mark Stodola and Thomas M. Carpenter filed a brief for the city of Little Rock et al. as amicus curiae. ST. LOUIS v. PRAPROTNIK 115 112 Opinion of O’Connor, J. jected to the requirement. In April 1980, respondent was suspended for 15 days by CDA’s Director of Urban Design, Charles Kindleberger, for having accepted outside employment without prior approval. Respondent appealed to the city’s Civil Service Commission, a body charged with reviewing employee grievances. Finding the penalty too harsh, the Commission reversed the suspension, awarded respondent backpay, and directed that he be reprimanded for having failed to secure a clear understanding of the rule. The Commission’s decision was not well received by respondent’s supervisors at CDA. Kindleberger later testified that he believed respondent had lied to the Commission, and that Spaid was angry with respondent. Respondent’s next two annual job performance evaluations were markedly less favorable than those in previous years. In discussing one of these evaluations with respondent, Kindleberger apparently mentioned his displeasure with respondent’s 1980 appeal to the Civil Service Commission. Respondent appealed both evaluations to the Department of Personnel. In each case, the Department ordered partial relief and was upheld by the city’s Director of Personnel or the Civil Service Commission. In April 1981, a new Mayor came into office, and Donald Spaid was replaced as Director of CDA by Frank Hamsher. As a result of budget cuts, a number of layoffs and transfers significantly reduced the size of CDA and of the planning section in which respondent worked. Respondent, however, was retained. In the spring of 1982, a second round of layoffs and transfers occurred at CDA. At that time, the city’s Heritage and Urban Design Commission (Heritage) was seeking approval to hire someone who was qualified in architecture and urban planning. Hamsher arranged with the Director of Heritage, Henry Jackson, for certain functions to be transferred from CDA to Heritage. This arrangement, which made it possible for Heritage to employ a relatively high-level “city planning 116 OCTOBER TERM, 1987 Opinion of O’Connor, J. 485 U. S. manager,” was approved by Jackson’s supervisor, Thomas Nash. Hamsher then transferred respondent to Heritage to fill this position. Respondent objected to the transfer, and appealed to the Civil Service Commission. The Commission declined to hear the appeal because respondent had not suffered a reduction in his pay or grade. Respondent then filed suit in Federal District Court, alleging that the transfer was unconstitutional. The city was named as a defendant, along with Kin-dleberger, Hamsher, Jackson (whom respondent deleted from the list before trial), and Deborah Patterson, who had succeeded Hamsher at CDA. At Heritage, respondent became embroiled in a series of disputes with Jackson and Jackson’s successor, Robert Killen. Respondent was dissatisfied with the work he was assigned, which consisted of unchallenging clerical functions far below the level of responsibilities that he had previously enjoyed. At least one adverse personnel decision was taken against respondent, and he obtained partial relief after appealing that decision. In December 1983, respondent was laid off from Heritage. The layoff was attributed to a lack of funds, and this apparently meant that respondent’s supervisors had concluded that they could create two lower level positions with the funds that were being used to pay respondent’s salary. Respondent then amended the complaint in his lawsuit to include a challenge to the layoff. He also appealed to the Civil Service Commission, but proceedings in that forum were postponed because of the pending lawsuit and have never been completed. Tr. Oral Arg. 31-32. The case went to trial on two theories: (1) that respondent’s First Amendment rights had been violated through retaliatory actions taken in response to his appeal of his 1980 suspension; and (2) that respondent’s layoff from Heritage was carried out for pretextual reasons in violation of due process. The jury returned special verdicts exonerating ST. LOUIS v. PRAPROTNIK 117 112 Opinion of O’Connor, J. each of the three individual defendants, but finding the city liable under both theories. Judgment was entered on the verdicts, and the city appealed. A panel of the Court of Appeals for the Eighth Circuit found that the due process claim had been submitted to the jury on an erroneous legal theory and vacated that portion of the judgment. With one judge dissenting, however, the panel affirmed the verdict holding the city liable for violating respondent’s First Amendment rights. 798 F. 2d 1168 (1986). Only the second of these holdings is challenged here. The Court of Appeals found that the jury had implicitly determined that respondent’s layoff from Heritage was brought about by an unconstitutional city policy. Id., at 1173. Applying a test under which a “policymaker” is one whose employment decisions are “final” in the sense that they are not subjected to de novo review by higher ranking officials, the Court of Appeals concluded that the city could be held liable for adverse personnel decisions taken by respondent’s supervisors. Id., at 1173-1175. In response to petitioner’s contention that the city’s personnel policies are actually set by the Civil Service Commission, the Court of Appeals concluded that the scope of review before that body was too “highly circumscribed” to allow it fairly to be said that the Commission, rather than the officials who initiated the actions leading to respondent’s injury, were the “final authority” responsible for setting city policy. Id., at 1175. Turning to the question whether a rational jury could have concluded that respondent had been injured by an unconstitutional policy, the Court of Appeals found that respondent’s transfer from CD A to Heritage had been “orchestrated” by Hamsher, that the transfer had amounted to a “constructive discharge,” and that the injury had reached fruition when respondent was eventually laid off by Nash and Killen. Id., at 1175-1176, and n. 8. The court held that the jury’s verdict exonerating Hamsher and the other individual defendants could be reconciled with a finding of liability 118 OCTOBER TERM, 1987 Opinion of O’Connor, J. 485 U. S. against the city because “the named defendants were not the supervisors directly causing the lay off, when the actual damages arose.” Id., at 1173, n. 3. Cf. Los Angeles v. Heller, 475 U. S. 796 (1986). The dissenting judge relied on our decision in Pembaur v. Cincinnati, 475 U. S. 469 (1986). He found that the power to set employment policy for petitioner city of St. Louis lay with the Mayor and Aidermen, who were authorized to enact ordinances, and with the Civil Service Commission, whose function was to hear appeals from city employees who believed that their rights under the city’s Charter, or under applicable rules and ordinances, had not been properly respected. 798 F. 2d, at 1180. The dissent concluded that respondent had submitted no evidence proving that the Mayor and Aidermen, or the Commission, had established a policy of retaliating against employees for appealing from adverse personnel decisions. Id., at 1179-1181. The dissenting judge also concluded that, even if there were such a policy,, the record evidence would not support a finding that respondent was in fact transferred or laid off in retaliation for the 1980 appeal from his suspension. Id., at 1181-1182. We granted certiorari, 479 U. S. 1029 (1987), and we now reverse. II We begin by addressing a threshold procedural issue. The second question presented in the petition for certiorari reads as follows: “Whether the failure of a local government to establish an appellate procedure for the review of officials’ decisions which does not defer in substantial part to the original decisionmaker’s decision constitutes a delegation of authority to establish final government policy such that liability may be imposed on the local government on the basis of the decisionmaker’s act alone, when the act is neither taken pursuant to a rule of general applicability ST. LOUIS v. PRAPROTNIK 119 112 Opinion of O’Connor, J. nor is a decision of specific application adopted as the result of a formal process?” Pet. for Cert. i. Although this question was manifestly framed in light of the holding of the Court of Appeals, respondent argues that petitioner failed to preserve the question through a timely objection to the jury instructions under Federal Rule of Civil Procedure 51. Arguing that both parties treated the identification of municipal “policymakers” as a question of fact at trial, respondent emphasizes that the jury was given the following instruction, which was offered by the city itself: “As a general principle, a municipality is not liable under 42 U. S. C. 1983 for the actions of its employees. However, a municipality may be held liable under 42 U. S. C. 1983 if the allegedly unconstitutional act was committed by an official high enough in the government so that his or her actions can be said to represent a government decision.” App. 113. Relying on Oklahoma City v. Tuttle, 471 U. S. 808 (1985), and Springfield v. Kibbe, 480 U. S. 257 (1987), respondent contends that the jury instructions should be reviewed only for plain error, and that the jury’s verdict should be tested only for sufficiency of the evidence. Declining to defend the legal standard adopted by the Court of Appeals, respondent vigorously insists that the judgment should be affirmed on the basis of the jury’s verdict and petitioner’s alleged failure to comply with Rule 51. Petitioner argues that it preserved the legal issues presented by its petition for certiorari in at least two ways. First, it filed a pretrial motion for summary judgment, or alternatively for judgment on the pleadings. In support of that motion, petitioner argued that respondent had failed to allege the existence of any impermissible municipal policy or of any facts that would indicate that such a policy existed. Second, petitioner filed a motion for directed verdict at the close of respondent’s case, renewed that motion at the close 120 OCTOBER TERM, 1987 Opinion of O’Connor, J. 485 U. S. of all the evidence, and eventually filed a motion for judgment notwithstanding the verdict. Respondent’s arguments do not bring our jurisdiction into question, and we must not lose sight of the fact, stressed in Tuttle, that the “decision to grant certiorari represents a commitment of scarce judicial resources with a view to deciding the merits of one or more of the questions presented in the petition.” 471 U. S., at 816. In Kibbe, it is true, the writ was dismissed in part because the petitioner sought to challenge a jury instruction to which it had not objected at trial. In the case before us, the focus of petitioner’s challenge is not on the jury instruction itself, but on the denial of its motions for summary judgment and a directed verdict. Although the same legal issue was raised both by those motions and by the jury instruction, “the failure to object to an instruction does not render the instruction the ‘law of the case’ for purposes of appellate review of the denial of a directed verdict or judgment notwithstanding the verdict.” Kibbe, supra, at 264 (dissenting opinion) (citations omitted). Petitioner’s legal position in the District Court—that respondent had failed to establish an unconstitutional municipal policy—was consistent with the legal standard that it now advocates. It should not be surprising if petitioner’s arguments in the District Court were much less detailed than the arguments it now makes in response to the decision of the Court of Appeals. That, however, does not imply that petitioner failed to preserve the issue raised in its petition for certiorari. Cf. post, at 165-167 (Stevens, J., dissenting). Accordingly, we find no obstacle to reviewing the question presented in the petition for certiorari, a question that was very clearly considered, and decided, by the Court of Appeals. We note, too, that petitioner has throughout this litigation been confronted with a legal landscape whose contours are “in a state of evolving definition and uncertainty.” Newport v. Fact Concerts, Inc., 453 U. S. 247, 256 (1981). We therefore do not believe that our review of the decision of the ST. LOUIS v. PRAPROTNIK 121 112 Opinion of O’Connor, J. Court of Appeals, a decision raising a question that “is important and appears likely to recur in § 1983 litigation against municipalities,” id., at 257, will undermine the policy of judicial efficiency that underlies Rule 51. The definition of municipal liability manifestly needs clarification, at least in part to give lower courts and litigants a fairer chance to craft jury instructions that will not require scrutiny on appellate review. Ill A Section 1 of the Ku Klux Act of 1871, Rev. Stat. § 1979, as amended, 42 U. S. C. § 1983, provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . , subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. ...” Ten years ago, this Court held that municipalities and other bodies of local government are “persons” within the meaning of this statute. Such a body may therefore be sued directly if it is alleged to have caused a constitutional tort through “a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.” Monell n. New York City Dept, of Social Services, 436 U. S.*658, 690 (1978). The Court pointed out that § 1983 also authorizes suit “for constitutional deprivations visited pursuant to governmental ‘custom’ even though such a custom has not received formal approval through the body’s official decisionmaking channels.” Id., at 690-691. At the same time, the Court rejected the use of the doctrine of respondeat superior and concluded that municipalities could be held liable only when an injury was inflicted by a govern 122 OCTOBER TERM, 1987 Opinion of O’Connor, J. 485 U. S. ment’s “lawmakers or by those whose edicts or acts may fairly be said to represent official policy.” Id., at 694. Monell’s rejection of respondeat superior, and its insistence that local governments could be held liable only for the results of unconstitutional governmental “policies,” arose from the language and history of § 1983. For our purposes here, the crucial terms of the statute are those that provide for liability when a government “subjects [a person], or causes [that person] to be subjected,” to a deprivation of constitutional rights. Aware that governmental bodies can act only through natural persons, the Court concluded that these governments should be held responsible when, and only when, their official policies cause their employees to violate another person’s constitutional rights. Reading the statute’s language in the light of its legislative history, the Court found that vicarious liability would be incompatible with the causation requirement set out on the face of § 1983. See id., at 691. That conclusion, like decisions that have widened the scope of § 1983 by recognizing constitutional rights that were unheard of in 1871, has been repeatedly reaffirmed. See, e. g., Owen n. City of Independence, 445 U. S. 622, 633, 655, n. 39 (1980); Polk County v. Dodson, 454 U. S. 312, 325 (1981); Tuttle, 471 U. S., at 818, and n. 5 (plurality opinion); id., at 828 (Brennan, J., concurring in part and concurring in judgment); Pembaur v. Cincinnati, 475 U. S., at 478-480, and nn. 7-8. Cf. Newport v. Fact Concerts, Inc., supra, at 259 (“[B]ecause the 1871 Act was designed to expose state and local officials to a new form of liability, it would defeat the promise of the statute to recognize any pre-existing immunity without determining both the policies that it serves and its compatibility with the purposes of § 1983”). In Monell itself, it was undisputed that there had been an official policy requiring city employees to take actions that were unconstitutional under this Court’s decisions. Without attempting to draw the line between actions taken pursuant to official policy and the independent actions of employees ST. LOUIS v. PRAPROTNIK 123 112 Opinion of O’Connor, J. and agents, the Monell Court left the “full contours” of municipal liability under § 1983 to be developed further on “another day.” 436 U. S., at 695. In the years since Monell was decided, the Court has considered several cases involving isolated acts by government officials and employees. We have assumed that an unconstitutional governmental policy could be inferred from a single decision taken by the highest officials responsible for setting policy in that area of the government’s business. See, e. g., Owen v. City of Independence, supra; Newport v. Fact Concerts, Inc., 453 U. S. 247 (1981). Cf. Pembaur, supra, at 480. At the other end of the spectrum, we have held that an unjustified shooting by a police officer cannot, without more, be thought to result from official policy. Tuttle, 471 U. S., at 821 (plurality opinion); id., at 830-831, and n. 5 (Brennan, J., concurring in part and concurring in judgment). Cf. Kibbe, 480 U. S., at 260 (dissenting opinion). Two Terms ago, in Pembaur, supra, we undertook to define more precisely when a decision on a single occasion may be enough to establish an unconstitutional municipal policy. Although the Court was unable to settle on a general formulation, Justice Brennan’s opinion articulated several guiding principles. First, a majority of the Court agreed that municipalities may be held liable under § 1983 only for acts for which the municipality itself is actually responsible, “that is, acts which the municipality has officially sanctioned or ordered.” Id., at 480. Second, only those municipal officials who have “final policymaking authority” may by their actions subject the government to §1983 liability. Id., at 483 (plurality opinion). Third, whether a particular official has “final policymaking authority” is a question of state law. Ibid, (plurality opinion). Fourth, the challenged action must have been taken pursuant to a policy adopted by the official or officials responsible under state law for making policy in that area of the city’s business. Id., at 482-483, and n. 12 (plurality opinion). 124 OCTOBER TERM, 1987 Opinion of O’Connor, J. 485 U. S. The Courts of Appeals have already diverged in their interpretations of these principles. Compare, for example, Williams n. Butler, 802 F. 2d 296, 299-302 (CA8 1986) (en banc), cert, pending sub nom. Little Rock n. Williams, No. 86-1049, with Jett v. Dallas Independent School Dist., 798 F. 2d 748, 759-760 (CA5 1986) (dictum). Today, we set out again to clarify the issue that we last addressed in Pembaur. B We begin by reiterating that the identification of policy-making officials is a question of state law. “Authority to make municipal policy may be granted directly by a legislative enactment or may be delegated by an official who possesses such authority, and of course, whether an official had final policymaking authority is a question of state law.” Pembaur v. Cincinnati, supra, at 483 (plurality opinion).1 Thus the identification of policymaking officials is not a question of federal law, and it is not a question of fact in the usual sense. The States have extremely wide latitude in determining the form that local government takes, and local preferences have led to a profusion of distinct forms. Among the many kinds of municipal corporations, political subdivisions, and special districts of all sorts, one may expect to find a rich variety of ways in which the power of govern 1 Unlike Justice Brennan, we would not replace this standard with a new approach in which state law becomes merely an “appropriate starting point” for an “assessment of a municipality’s actual power structure.” Post, at 143, 145. Municipalities cannot be expected to predict how courts or juries will assess their “actual power structures,” and this uncertainty could easily lead to results that would be hard in practice to distinguish from the results of a regime governed by the doctrine of respondeat superior. It is one thing to charge a municipality with responsibility for the decisions of officials invested by law, or by a “custom or usage” having the force of law, with policymaking authority. It would be something else, and something inevitably more capricious, to hold a municipality responsible for every decision that is perceived as “final” through the lens of a particular factfinder’s evaluation of the city’s “actual power structure.” ST. LOUIS v. PRAPROTNIK 125 112 Opinion of O’Connor, J. ment is distributed among a host of different officials and official bodies. See generally C. Rhyne, The Law of Local Government Operations §§1.3-1.7 (1980). Without attempting to canvass the numberless factual scenarios that may come to light in litigation, we can be confident that state law (which may include valid local ordinances and regulations) will always direct a court to some official or body that has the responsibility for making law or setting policy in any given area of a local government’s business.2 We are not, of course, predicting that state law will always speak with perfect clarity. We have no reason to suppose, 2 Justice Stevens, who believes that Monell incorrectly rejected the doctrine of respondeat superior, suggests a new theory that reflects his perceptions of the congressional purposes underlying § 1983. See post, at 148, n. 1. This theory would apparently ignore state law, and distinguish between “high” officials and “low” officials on the basis of an independent evaluation of the extent to which a particular official’s actions have “the potential of controlling governmental decisionmaking,” or are “perceived as the actions of the city itself.” Post, at 171. Whether this evaluation would be conducted by judges or juries, we think the legal test is too imprecise to hold much promise of consistent adjudication or principled analysis. We can see no reason, except perhaps a desire to come as close as possible to respondeat superior without expressly adopting that doctrine, that could justify introducing such unpredictability into a body of law that is already so difficult. As Justice Stevens acknowledges, see post, at 148, n. 1, this Court has repeatedly rejected his interpretation of Congress’ intent. We have held that Congress intended to hold municipalities responsible under § 1983 only for the execution of official policies and customs, and not for injuries inflicted solely by employees or agents. See, e. g., Monell v. New York City Dept, of Social Services, 436 U. S. 658, 694 (1978); Pembaur v. Cincinnati, 475 U. S. 469, 478-480 (1986). Like the Pembaur plurality, we think it is self-evident that official policies can only be adopted by those legally charged with doing so. See supra, at 124, and n. 1. We are aware of nothing in § 1983 or its legislative history, and Justice Stevens points to nothing, that would support the notion that unauthorized acts of subordinate employees are official policies because they may have the “potential” to become official policies or may be “perceived as” official policies. Accordingly, we conclude that Justice Stevens’ proposal is without a basis in the law. 126 OCTOBER TERM, 1987 Opinion of O’Connor, J. 485 U. S. however, that federal courts will face greater difficulties here than those that they routinely address in other contexts. We are also aware that there will be cases in which policy-making responsibility is shared among more than one official or body. In the case before us, for example, it appears that the Mayor and Aidermen are authorized to adopt such ordinances relating to personnel administration as are compatible with the City Charter. See St. Louis City Charter, Art. XVIII, §7(b), App. 62-63. The Civil Service Commission, for its part, is required to “prescribe . . . rules for the administration and enforcement of the provisions of this article, and of any ordinance adopted in pursuance thereof, and not inconsistent therewith.” §7(a), App. 62. Assuming that applicable law does not make the decisions of the Commission reviewable by the Mayor and Aidermen, or vice versa, one would have to conclude that policy decisions made either by the Mayor and Aidermen or by the Commission would be attributable to the city itself. In any event, however, a federal court would not be justified in assuming that municipal policymaking authority lies somewhere other than where the applicable law purports to put it. And certainly there can be no justification for giving a jury the discretion to determine which officials are high enough in the government that their actions can be said to represent a decision of the government itself. As the plurality in Pembaur recognized, special difficulties can arise when it is contended that a municipal policymaker has delegated his policymaking authority to another official. 475 U. S., at 482-483, and n. 12. If the mere exercise of discretion by an employee could give rise to a constitutional violation, the result would be indistinguishable from respondeat superior liability. If, however, a city’s lawful policymakers could insulate the government from liability simply by delegating their policymaking authority to others, § 1983 could not serve its intended purpose. It may not be possible to draw an ST. LOUIS v. PRAPROTNIK 127 112 Opinion of O’Connor, J. elegant line that will resolve this conundrum, but certain principles should provide useful guidance. First, whatever analysis is used to identify municipal policymakers, egregious attempts by local governments to insulate themselves from liability for unconstitutional policies are precluded by a separate doctrine. Relying on the language of § 1983, the Court has long recognized that a plaintiff may be able to prove the existence of a widespread practice that, although not authorized by written law or express municipal policy, is “so permanent and well settled as to constitute a ‘custom or usage’ with the force of law.” Adickes n. S. H. Kress & Co., 398 U. S. 144, 167-168 (1970). That principle, which has not been affected by Monell or subsequent cases, ensures that most deliberate municipal evasions of the Constitution will be sharply limited. Second, as the Pembaur plurality recognized, the authority to make municipal policy is necessarily the authority to make final policy. 475 U. S., at 481-484. When an official’s discretionary decisions are constrained by policies not of that official’s making, those policies, rather than the subordinate’s departures from them, are the act of the municipality. Similarly, when a subordinate’s decision is subject to review by the municipality’s authorized policymakers, they have retained the authority to measure the official’s conduct for conformance with their policies. If the authorized policymakers approve a subordinate’s decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final. C Whatever refinements of these principles may be suggested in the future, we have little difficulty concluding that the Court of Appeals applied an incorrect legal standard in this case. In reaching this conclusion, we do not decide whether the First Amendment forbade the city to retaliate against respondent for having taken advantage of the grievance mechanism in 1980. Nor do we decide whether there 128 OCTOBER TERM, 1987 Opinion of O’Connor, J. 485 U. S. was evidence in this record from which a rational jury could conclude either that such retaliation actually occurred or that respondent suffered any compensable injury from whatever retaliatory action may have been taken. Finally, we do not address petitioner’s contention that the jury verdict exonerating the individual defendants cannot be reconciled with the verdict against the city. Even assuming that all these issues were properly resolved in respondent’s favor, we would not be able to affirm the decision of the Court of Appeals. The city cannot be held liable under § 1983 unless respondent proved the existence of an unconstitutional municipal policy. Respondent does not contend that anyone in city government ever promulgated, or even articulated, such a policy. Nor did he attempt to prove that such retaliation was ever directed against anyone other than himself. Respondent contends that the record can be read to establish that his supervisors were angered by his 1980 appeal to the Civil Service Commission; that new supervisors in a new administration chose, for reasons passed on through some informal means, to retaliate against respondent two years later by transferring him to another agency; and that this transfer was part of a scheme that led, another year and a half later, to his layoff. Even if one assumes that all this was true, it says nothing about the actions of those whom the law established as the makers of municipal policy in matters of personnel administration. The Mayor and Aidermen enacted no ordinance designed to retaliate against respondent or against similarly situated employees. On the contrary, the city established an independent Civil Service Commission and empowered it to review and correct improper personnel actions. Respondent does not deny that his repeated appeals from adverse personnel decisions repeatedly brought him at least partial relief, and the Civil Service Commission never so much as hinted that retaliatory transfers or layoffs were permissible. Respondent points to no evidence indicating that the Commission delegated to anyone its final authority to ST. LOUIS v. PRAPROTNIK 129 112 Opinion of O’Connor, J. interpret and enforce the following policy set out in Article XVIII of the city’s Charter, §2(a), App. 49: “Merit and fitness. All appointments and promotions to positions in the service of the city and all measures for the control and regulation of employment in such positions, and separation therefrom, shall be on the sole basis of merit and fitness . . . The Court of Appeals concluded that “appointing authorities,” like Hamsher and Killen, who had the authority to initiate transfers and layoffs, were municipal “policymakers.” The court based this conclusion on its findings (1) that the decisions of these employees were not individually reviewed for “substantive propriety” by higher supervisory officials; and (2) that the Civil Service Commission decided appeals from such decisions, if at all, in a circumscribed manner that gave substantial deference to the original decisionmaker. 798 F. 2d, at 1174-1175. We find these propositions insufficient to support the conclusion that Hamsher and Killen were authorized to establish employment policy for the city with respect to transfers and layoffs. To the contrary, the City Charter expressly states that the Civil Service Commission has the power and the duty: “To consider and determine any matter involved in the administration and enforcement of this [Civil Service] article and the rules and ordinances adopted in accordance therewith that may be referred to it for decision by the director [of personnel], or on appeal by any appointing authority, employe, or taxpayer of the city, from any act of the director or of any appointing authority. The decision of the commission in all such matters shall be final, subject, however, to any right of action under any law of the state or of the United States.” St. Louis City Charter, Art. XVIII, § 7(d), App. 63. This case therefore resembles the hypothetical example in Pembaur: “[I]f [city] employment policy was set by the 130 OCTOBER TERM, 1987 Opinion of O’Connor, J. 485 U. S. [Mayor and Aidermen and by the Civil Service Commission], only [those] bodies’] decisions would provide a basis for [city] liability. This would be true even if the [Mayor and Aidermen and the Commission] left the [appointing authorities] discretion to hire and fire employees and [they] exercised that discretion in an unconstitutional manner . . . .” 475 U. S., at 483, n. 12. A majority of the Court of Appeals panel determined that the Civil Service Commission’s review of individual employment actions gave too much deference to the decisions of appointing authorities like Hamsher and Killen. Simply going along with discretionary decisions made by one’s subordinates, however, is not a delegation to them of the authority to make policy. It is equally consistent with a presumption that the subordinates are faithfully attempting to comply with the policies that are supposed to guide them. It would be a different matter if a particular decision by a subordinate was cast in the form of a policy statement and expressly approved by the supervising policymaker. It would also be a different matter if a series of decisions by a subordinate official manifested a “custom or usage” of which the supervisor must have been aware. See supra, at 127. In both those cases, the supervisor could realistically be deemed to have adopted a policy that happened to have been formulated or initiated by a lower ranking official. But the mere failure to investigate the basis of a subordinate’s discretionary decisions does not amount to a delegation of policymaking authority, especially where (as here) the wrongfulness of the subordinate’s decision arises from a retaliatory motive or other unstated rationale. In such circumstances, the purposes of § 1983 would not be served by treating a subordinate employee’s decision as if it were a reflection of municipal policy. Justice Brennan’s opinion, concurring in the judgment, finds implications in our discussion that we do not think necessary or correct. See post, at 142-147. We nowhere say or imply, for example, that “a municipal charter’s precatory ST. LOUIS v. PRAPROTNIK 131 112 Opinion of O’Connor, J. admonition against discrimination or any other employment practice not based on merit and fitness effectively insulates the municipality from any liability based on acts inconsistent with that policy.” Post, at 145, n. 7. Rather, we would respect the decisions, embodied in state and local law, that allocate policymaking authority among particular individuals and bodies. Refusals to carry out stated policies could obviously help to show that a municipality’s actual policies were different from the ones that had been announced. If such a showing were made, we would be confronted with a different case than the one we decide today. Nor do we believe that we have left a “gaping hole” in § 1983 that needs to be filled with the vague concept of “de facto final policymaking authority.” Post, at 144. Except perhaps as a step towards overruling Monell and adopting the doctrine of respondeat superior, ad hoc searches for officials possessing such “de facto” authority would serve primarily to foster needless unpredictability in the application of § 1983. IV We cannot accept either the Court of Appeals’ broad definition of municipal policymakers or respondent’s suggestion that a jury should be entitled to define for itself which officials’ decisions should expose a municipality to liability. Respondent has suggested that the record will support an inference that policymaking authority was in fact delegated to individuals who took retaliatory action against him and who were not exonerated by the jury. Respondent’s arguments appear to depend on a legal standard similar to the one suggested in Justice Stevens’ dissenting opinion, post, at 171, which we do not accept. Our examination of the record and state law, however, suggests that further review of this case may be warranted in light of the principles we have discussed. That task is best left to the Court of Appeals, which will be free to invite additional briefing and argument if necessary. Accordingly, the decision of the Court of Appeals is 132 OCTOBER TERM, 1987 Brennan, J., concurring in judgment 485 U. S. reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Kennedy took no part in the consideration or decision of this case. Justice Brennan, with whom Justice Marshall and Justice Blackmun join, concurring in the judgment. Despite its somewhat confusing procedural background, this case at bottom presents a relatively straightforward question: whether respondent’s supervisor at the Community Development Agency, Frank Hamsher, possessed the authority to establish final employment policy for the city of St. Louis such that the city can be held liable under 42 U. S. C. § 1983 for Hamsher’s allegedly unlawful decision to transfer respondent to a dead-end job. Applying the test set out two Terms ago by the plurality in Pembaur v. Cincinnati, 475 U. S. 469 (1986), I conclude that Hamsher did not possess such authority and I therefore concur in the Court’s judgment reversing the decision below. I write separately, however, because I believe that the commendable desire of today’s plurality to “define more precisely when a decision on a single occasion may be enough” to subject a municipality to § 1983 liability, ante, at 123, has led it to embrace a theory of municipal liability that is both unduly narrow and unrealistic, and one that ultimately would permit municipalities to insulate themselves from liability for the acts of all but a small minority of actual city policymakers. I Respondent James H. Praprotnik worked for petitioner city of St. Louis for 15 years. A licensed architect, he began his career in 1968 as city planner and by 1980 had risen to a mid-level management position in the city’s Community Development Agency (CDA), gamering consistently high job evaluations, substantial pay raises, and rapid promotions ST. LOUIS v. PRAPROTNIK 133 112 Brennan, J., concurring in judgment during the intervening 12 years. 1980, however, marked the turning point in respondent’s fortunes as a civil servant. In April of that year, his supervisor, Charles Kindleberger, suspended him for 15 days for failing to comply with a secondary employment policy that required all city professionals to obtain prior approval before undertaking any outside work. Respondent, who had objected to the policy since the head of the agency, CDA Director Donald Spaid, first announced it in 1978, appealed the suspension to the city’s Civil Service Commission (CSC), arguing that the advance approval requirement was an improper invasion of his privacy and that in any event he had consistently complied with it. Although the CSC apparently did not question the validity of the policy, it found the penalty excessive, and therefore directed respondent’s supervisors to reinstate him with backpay and to issue a letter of reprimand in lieu of the suspension. Testimony at the trial below revealed that neither Spaid nor Kindleberger was pleased with respondent’s actions, and that Spaid in particular was “very down on” respondent for his testimony before the CSC. 3 Record 1-54 to 1-55, 5 id., at 3-237. In October 1980, just before the CSC rendered its decision, Kindleberger gave respondent an overall rating of “good” for the year, but recommended a two-step decrease in his salary. Kindleberger, who had just six months earlier proposed raising respondent’s salary two grades, justified the reduction as part of a citywide pay scale reorganization. Respondent, however, viewed the recommendation as retaliation for his CSC appeal and petitioned the Department of Personnel for relief; the Department, which considers initial challenges to all performance ratings, granted partial relief, approving a one-step reduction, and the CSC affirmed this disposition on final appeal. The following year witnessed a change in city administrations and the arrival of Frank Hamsher, who succeeded Spaid as CDA Director. Kindleberger, however, remained the supervisor responsible for respondent’s performance 134 OCTOBER TERM, 1987 Brennan, J., concurring in judgment 485 U. S. evaluation, and in October 1981 he rated respondent merely “adequate” overall. A confidential memorandum from one of respondent’s superiors to Kindleberger explained that respondent did not get along well with others, citing as an example respondent’s prior difficulties with former Director Spaid. Respondent, who had previously never received a rating of less than “good,” again appealed to the Department of Personnel, which again ordered partial relief. Six months later CD A underwent major budget and staff reductions and, as part of the resulting reorganization, Director Hamsher proposed transferring respondent’s duties to the Heritage and Urban Design Commission (Heritage) and consolidating his functions with those of a vacant position at Heritage. Although there was testimony indicating that Heritage Commissioner Henry Jackson thought the transfer unnecessary, both Jackson and his superior, Director of Public Safety Thomas Nash, agreed to the consolidation, and the Director of Personnel formally approved the proposal. Respondent objected to the move and appealed to the CSC, but the CSC declined to review the decision, reasoning that because Heritage classified the consolidated position at the same grade as respondent’s former job, the transfer was merely “lateral” and respondent had therefore suffered no “adverse” employment action. Thereafter, respondent filed this § 1983 suit against the city, Kindleberger, Hamsher, and Hamsher’s successor at CDA, Deborah Patterson, alleging that the transfer violated his constitutional rights.1 In the meantime, Jackson took over many of the architectural tasks CDA had ostensibly transferred to the new position and assigned respondent mainly clerical duties, an arrangement the latter found highly unsatisfactory. In November 1982, Jackson rated respondent “inadequate” overall and recommended a one-step reduction in his salary, as well 1 Respondent also initially named Heritage Commissioner Henry Jack-son as a defendant, but later dropped him from the suit after the latter left city government and moved out of the jurisdiction. ST. LOUIS v. PRAPROTNIK 135 112 Brennan, J., concurring in judgment as an overall reduction in the classification of his position. Respondent successfully appealed his performance rating to the Personnel Department, which again granted partial relief. Nonetheless, in March 1983 his position was substantially downgraded and by the summer of that year Jackson’s successor at Heritage, Robert Killen, proposed abolishing the position altogether. In December 1983, Killen carried through on his plan and, with the approval of Public Safety Director Nash, laid respondent off. Respondent amended his complaint in the District Court to reflect the layoff and simultaneously appealed the action to the CSC, but the CSC stayed its proceedings in light of the pendency of this lawsuit. At trial, respondent sought to prove that the individual defendants had transferred him and eventually laid him off in retaliation for his use of the city’s grievance machinery, thereby violating his First Amendment and due process rights. For its part, the city contended that the individual defendants were not personally responsible for the alleged ills that had befallen respondent. Conspicuous by their absence, city counsel argued, were Donald Spaid, whose displeasure over respondent’s testimony before the CSC was allegedly the motivating force behind respondent’s first proposed grade reduction and allegedly infected later performance evaluations; Robert Killen, who initiated and ultimately authorized the elimination of respondent’s position at Heritage; and Thomas Nash, who approved the layoff. Respondent’s counsel, however, defended the choice of defendants as those “primarily responsible” for the constitutional deprivations. 6 id., at 4-56. The District Court instructed the jury that generally a city is not liable under § 1983 for the acts of its employees, but that it may be held to answer for constitutional wrongs “committed by an official high enough in the government so that his or her actions can be said to represent a government decision.” App. 113. In a lengthy and involved instruction, the court further advised the jury that it must find in favor of 136 OCTOBER TERM, 1987 Brennan, J., concurring in judgment 485 U. S. respondent, and against the individual defendants, if it found six facts to be true, one of which was that “Hamsher and Kindleberger were personally involved in causing [respondent’s] transfer and/or layoff.” Id., at 118. The jury exonerated the three individual defendants, but awarded respondent $15,000 on each of his constitutional claims against petitioner. The Court of Appeals for the Eighth Circuit vacated the judgment entered on respondent’s due process claim (a ruling not at issue here) but affirmed the judgment as to the First Amendment claim. 798 F. 2d 1168 (1986). With respect to this latter claim, the court reasoned that the city could be held accountable for an improperly motivated transfer and layoff if it had delegated to the responsible officials, either directly or indirectly, the authority to act on behalf of the city, and if the decisions made within the scope of this delegated authority were essentially final. Applying this test, the court noted that under the City Charter, “appointing authorities,” or department heads, such as Hamsher, could undertake transfers and layoffs subject only to the approval of the Director of Personnel, who undertook no substantive review of such decisions and simply conditioned his approval on formal compliance with city procedures. Moreover, because the CSC engaged in highly circumscribed and deferential review of layoffs and, at least so far as this case reveals, no review whatever of lateral transfers, the court concluded that an appointing authority’s transfer and layoff decisions were final. Id., at 1174-1175. Having found that Hamsher was a final policymaker whose acts could subject petitioner to § 1983 liability, the court determined that the jury had ample evidence from which it could find that Hamsher transferred respondent in retaliation for the latter’s exercise of his First Amendment rights, and that the transfer in turn precipitated respondent’s layoff. This constructive discharge theory, the majority found, also reconciled the jury’s apparently inconsistent verdicts: the ST. LOUIS v. PRAPROTNIK 137 112 Brennan, J., concurring in judgment jury could have viewed Hamsher’s unlawful motivation as the proximate cause of respondent’s dismissal but, because Nash and Killen administered the final blows, it could have concluded that Hamsher, Kindleberger, and Patterson were not “personally involved” in the layoff as required by the instructions; accordingly, the jury could have reasonably exonerated the individual defendants while finding the city liable. Id., at 1176, and n. 8.2 II In light of the jury instructions below, the central question before us is whether the city delegated to CDA Director Frank Hamsher the authority to establish final employment policy for the city respecting transfers. For if it did not, then his allegedly unlawful decision to move respondent to an unfulfilling, dead-end position is simply not an act for which the city can be held responsible under § 1983. I am constrained to conclude that Hamsher possessed no such policy-making power here, and that, on the contrary, his allegedly retaliatory act simply constituted an abuse of the discretionary authority the city had entrusted to him. The scope of Hamsher’s authority with respect to transfers derives its significance from our determination in Monell v. New York City Dept, of Social Services, 436 U. S. 658 (1978), that a municipality is not liable under § 1983 for each and every wrong committed by its employees. In rejecting the concept of vicarious municipal liability, we emphasized that 2 The instruction in question directed the jury to find in favor of respondent and against the individual defendants if it found, among other things, that Hamsher and Kindleberger “were personally involved in causing [respondent’s] transfer and/or layoff.” App. 118 (emphasis added). Although Hamsher was personally involved in the transfer, the Court of Appeals found the phrase “and/or” confusing and thus decided that the jury must have understood it to mean simply “and.” 798 F. 2d, at 1172-1173, n. 3. Because I believe Hamsher was not a final policymaking official, I find it unnecessary to decide whether the court below properly construed the jury instructions or to determine whether the jury’s verdicts were in fact inconsistent. 138 OCTOBER TERM, 1987 Brennan, J., concurring in judgment 485 U. S. “the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for the deprivation of rights protected by the Constitution.” Id., at 690. More recently we have explained that the touchstone of “official policy” is designed “to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible.” Pem-baur v. Cincinnati, 475 U. S., at 479-480 (emphasis in original). Municipalities, of course, conduct much of the business of governing through human agents. Where those agents act in accordance with formal policies, or pursuant to informal practices “so permanent and well settled as to constitute a ‘custom or usage’ with the force of law,” Adickes v. S. H. Kress & Co., 398 U. S. 144, 167-168 (1970), we naturally ascribe their acts to the municipalities themselves and hold the latter responsible for any resulting constitutional deprivations. Monell, which involved a challenge to a citywide policy requiring all pregnant employees to take unpaid leave after their fifth month of pregnancy, was just such a case. Nor have we ever doubted that a single decision of a city’s properly constituted legislative body is a municipal act capable of subjecting the city to liability. See, e. g., Newport n. Fact Concerts, Inc., 453 U. S. 247 (1981) (City Council canceled concert permit for content-based reasons); Owen v. City of Independence, 445 U. S. 622 (1980) (City Council passed resolution firing Police Chief without any pretermination hearing). In these cases we neither required nor, as the plurality suggests, assumed that these decisions reflected generally applicable “policies” as that term is commonly understood, because it was perfectly obvious that the actions of the municipalities’ policymaking organs, whether isolated or not, were properly charged to the municipalities them ST. LOUIS v. PRAPROTNIK 139 112 Brennan, J., concurring in judgment selves.3 And, in Pembaur we recognized that “the power to establish policy is no more the exclusive province of the legislature at the local level than at the state or national level,” 475 U. S., at 480, and that the isolated decision of an executive municipal policymaker, therefore, could likewise give rise to municipal liability under § 1983. In concluding that Frank Hamsher was a policymaker, the Court of Appeals relied on the fact that the city had delegated to him “the authority, either directly or indirectly, to act on [its] behalf,” and that his decisions within the scope of this delegated authority were effectively final. 798 F. 2d, at 1174. In Pembaur, however, we made clear that a municipality is not liable merely because the official who inflicted the constitutional injury had the final authority to act on its behalf; rather, as four of us explained, the official in question must possess “final authority to establish municipal policy with respect to the [challenged] action.” 475 U. S., at 481. Thus, we noted, “[t]he fact that a particular official—even a policymaking official—has discretion in the exercise of particular functions does not, without more, give rise to munici 8 The plurality’s suggestion that in Owen and Fact Concerts we “assumed that an unconstitutional governmental policy could be inferred from a single decision,” see ante, at 123 (emphasis added), elevates the identification of municipal policy from touchstone to talisman. Section 1983 imposes liability where a municipality “subjects [a person], or causes [a person] to be subjected ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws . . . .” Our decision in Monell, interpreting the statute to require a showing that such deprivations arise from municipal policy, did not employ the policy requirement as an end in itself, but rather as a means of determining which acts by municipal employees are properly attributed to the municipality. Congress, we held, did not intend to subject cities to liability simply because they employ tortfeasors. But where a municipality’s governing legislative body inflicts the constitutional injury, the municipal policy inquiry is essentially superfluous: the city is liable under the statute whether its decision reflects a considered policy judgment or nothing more than the bare desire to inflict harm. 140 OCTOBER TERM, 1987 Brennan, J., concurring in judgment 485 U. S. pal liability based on an exercise of that discretion.” Id., at 481-482. By way of illustration, we explained that if, in a given county, the Board of County Commissioners established county employment policy and delegated to the County Sheriff alone the discretion to hire and fire employees, the county itself would not be liable if the Sheriff exercised this authority in an unconstitutional manner, because “the decision to act unlawfully would not be a decision of the Board.” Id., at 483, n. 12. We pointed out, however, that in that same county the Sheriff could be the final policymaker in other areas, such as law enforcement practices, and that if so, his or her decisions in such matters could give rise to municipal liability. Ibid. In short, just as in Owen and Fact Concerts we deemed it fair to hold municipalities liable for the isolated, unconstitutional acts of their legislative bodies, regardless of whether those acts were meant to establish generally applicable “policies,” so too in Pembaur four of us concluded that it is equally appropriate to hold municipalities accountable for the isolated constitutional injury inflicted by an executive final municipal policymaker, even though the decision giving rise to the injury is not intended to govern future situations. In either case, as long as the contested decision is made in an area over which the official or legislative body could establish a final policy capable of governing future municipal conduct, it is both fair and consistent with the purposes of § 1983 to treat the decision as that of the municipality itself, and to hold it liable for the resulting constitutional deprivation. In my view, Pembaur controls this case. As an “appointing authority,” Hamsher was empowered under the City Charter to initiate lateral transfers such as the one challenged here, subject to the approval of both the Director of Personnel and the appointing authority of the transferee agency. The Charter, however, nowhere confers upon ST. LOUIS v. PRAPROTNIK 141 112 Brennan, J., concurring in judgment agency heads any authority to establish city policy, final or otherwise, with respect to such transfers. Thus, for example, Hamsher was not authorized to promulgate binding guidelines or criteria governing how or when lateral transfers were to be accomplished. Nor does the record reveal that he in fact sought to exercise any such authority in these matters. There is no indication, for example, that Hamsher ever purported to institute or announce a practice of general applicability concerning transfers. Instead, the evidence discloses but one transfer decision—the one involving respondent—which Hamsher ostensibly undertook pursuant to a citywide program of fiscal restraint and budgetary reductions. At most, then, the record demonstrates that Hamsher had the authority to determine how best to effectuate a policy announced by his superiors, rather than the power to establish that policy. Like the hypothetical Sheriff in Pembaur’s n. 12, Hamsher had discretionary authority to transfer CD A employees laterally; that he may have used this authority to punish respondent for the exercise of his First Amendment rights does not, without more, render the city liable for respondent’s resulting constitutional injury.4 The court below did not suggest that either Killen or Nash, who together orchestrated respondent’s ultimate layoff, 4 While the Court of Appeals erred to the extent it equated the authority to act on behalf of a city with the power to establish municipal policy, in my view the lower court quite correctly concluded that the CSC’s highly circumscribed and deferential review of Hamsher’s decisions in no way rendered those decisions less than final. We of course generally accord great deference to the interpretation and application of state law by the courts of appeals, see Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 500 (1985); United States v. Varig Airlines, 467 U. S. 797, 815, n. 12 (1984), and that deference is certainly applicable to the Court of Appeals’ assessment of the scope of CSC review. Moreover, the facts of this case reveal that the CSC believed it lacked the authority to review lateral transfers. Accordingly, had Hamsher actually possessed policymaking authority with respect to such decisions, I would have little difficulty concluding that such authority was final. See infra at, 145-146. 142 OCTOBER TERM, 1987 Brennan, J., concurring in judgment 485 U. S. shared Hamsher’s constitutionally impermissible animus. Because the court identified only one unlawfully motivated municipal employee involved in respondent’s transfer and layoff, and because that employee did not possess final policy-making authority with respect to the contested decision,5 the city may not be held accountable for any constitutional wrong respondent may have suffered. Ill These determinations, it seems to me, are sufficient to dispose of this case, and I therefore think it unnecessary to decide, as the plurality does, who the actual policymakers in St. Louis are. I question more than the mere necessity of these determinations, however, for I believe that in the course of passing on issues not before us, the plurality announces legal principles that are inconsistent with our earlier cases and unduly restrict the reach of § 1983 in cases involving municipalities. The plurality begins its assessment of St. Louis’ power structure by asserting that the identification of policymaking officials is a question of state law, by which it means that the question is neither one of federal law nor of fact, at least “not . . . in the usual sense.” See ante, at 124. Instead, the plurality explains, courts are to identify municipal policymakers 51 am unable to agree with Justice Stevens that the record provides sufficient evidence of complicity on the part of other municipal policymakers such that we may sustain the jury’s verdict against petitioner on a conspiracy theory neither espoused nor addressed by the court below. Justice Stevens’ dissent relies to a large extent on respondent’s controversial public testimony about the Serra sculpture, and the unwelcome reception that testimony drew in the Mayor’s office. See post, at 149-155. Whatever else may be said about the strength of this evidence, however, the dissent’s reliance on it is flawed in one crucial respect: the jury instructions concerning respondent’s First Amendment claim refer exclusively to the exercise of his appellate rights before the CSC and make no mention whatever of his public testimony. Under these circumstances, the jury was simply not at liberty to impose liability against petitioner based on the allegedly retaliatory actions of the Mayor and his close associates; thus we may not sustain its verdict on the basis of such evidence. ST. LOUIS v. PRAPROTNIK 143 112 Brennan, J., concurring in judgment by referring exclusively to applicable state statutory law. Ibid. Not surprisingly, the plurality cites no authority for this startling proposition, nor could it, for we have never suggested that municipal liability should be determined in so formulaic and unrealistic a fashion. In any case in which the policymaking authority of a municipal tortfeasor is in doubt, state law will naturally be the appropriate starting point, but ultimately the factfinder must determine where such policymaking authority actually resides, and not simply “where the applicable law purports to put it.” Ante, at 126. As the plurality itself acknowledges, local governing bodies may take myriad forms. We in no way slight the dignity of municipalities by recognizing that in not a few of them real and apparent authority may diverge, and that in still others state statutory law will simply fail to disclose where such authority ultimately rests. Indeed, in upholding the Court of Appeals’ determination in Pembaur that the County Prosecutor was a policymaking official with respect to county law enforcement practices, a majority of this Court relied on testimony which revealed that the County Sheriff’s office routinely forwarded certain matters to the Prosecutor and followed his instructions in those areas. See 475 U. S., at 485; ibid. (White, J., concurring); id., at 491 (O’Connor, J., concurring). While the majority splintered into three separate camps on the ultimate theory of municipal liability, and the case generated five opinions in all, not a single Member of the Court suggested that reliance on such extrastatutory evidence of the county’s actual allocation of policymaking authority was in any way improper. Thus, although I agree with the plurality that juries should not be given open-ended “discretion to determine which officials are high enough in the government that their actions can be said to represent a decision of the government itself,” ante, at 126 (emphasis added), juries can and must find the predicate facts necessary to a determination whether a given official possesses final policymaking authority. While the jury instructions in this case were regrettably vague, the plurality’s solution tosses 144 OCTOBER TERM, 1987 Brennan, J., concurring in judgment 485 U. S. the baby out with the bath water. The identification of municipal policymakers is an essentially factual determination "in the usual sense,” and is therefore rightly entrusted to a properly instructed jury. Nor does the “custom or usage” doctrine adequately compensate for the inherent inflexibility of a rule that leaves the identification of policymakers exclusively to state statutory law. That doctrine, under which municipalities and States can be held liable for unconstitutional practices so well settled and permanent that they have the force of law, see Adickes v. S. H. Kress & Co., 398 U. S., at 167, has little if any bearing on the question whether a city has delegated de facto final policymaking authority to a given official. A city practice of delegating final policymaking authority to a subordinate or mid-level official would not be unconstitutional in and of itself, and an isolated unconstitutional act by an official entrusted with such authority would obviously not amount to a municipal “custom or usage.” Under Pembaur, of course, such an isolated act should give rise to municipal liability. Yet a case such as this would fall through the gaping hole the plurality’s construction leaves in § 1983, because state statutory law would not identify the municipal actor as a policy-making official, and a single constitutional deprivation, by definition, is not a well-settled and permanent municipal practice carrying the force of law.6 For these same reasons, I cannot subscribe to the plurality’s narrow and overly rigid view of when a municipal official’s policymaking authority is “final.” Attempting to place a gloss on Pembaur’s finality requirement, the plurality suggests that whenever the decisions of an official are subject to 6 Indeed, the plurality appears to acknowledge as much when it explains that the “custom or usage” doctrine will forestall “egregious attempts by local governments to insulate themselves from liability for unconstitutional policies,” and that “most deliberate municipal evasions of the Constitution will be sharply limited.” Ante, at 127 (emphases added). Congress, however, did not enact § 1983 simply to provide redress for “most” constitutional deprivations, nor did it limit the statute’s reach only to those deprivations that are truly “egregious.” ST. LOUIS v. PRAPROTNIK 145 112 Brennan, J., concurring in judgment some form of review—however limited—that official’s decisions are nonfinal. Under the plurality’s theory, therefore, even where an official wields policymaking authority with respect to a challenged decision, the city would not be liable for that official’s policy decision unless reviewing officials affirmatively approved both the “decision and the basis for it.” Ante, at 127. Reviewing officials, however, may as a matter of practice never invoke their plenary oversight authority, or their review powers may be highly circumscribed. See n. 4, supra. Under such circumstances, the subordinate’s decision is in effect the final municipal pronouncement on the subject. Certainly a § 1983 plaintiff is entitled to place such considerations before the jury, for the law is concerned not with the niceties of legislative draftsmanship but with the realities of municipal decisionmaking, and any assessment of a municipality’s actual power structure is necessarily a factual and practical one.7 * * * * * * * is Accordingly, I cannot endorse the plurality’s determination, based on nothing more than its own review of the City Charter, that the Mayor, the Aidermen, and the CSC are the only policymakers for the city of St. Louis. While these offi- 7 The plurality also asserts that “[w]hen an official’s discretionary deci- sions are constrained by policies not of that official’s making, those policies, rather than the subordinate’s departures from them, are the act of the municipality.” Ante, at 127. While I have no quarrel with such a proposition in the abstract, I cannot accept the plurality’s apparent view that a municipal charter’s precatory admonition against discrimination or any other employment practice not based on merit and fitness effectively insu- lates the municipality from any liability based on acts inconsistent with that policy. Again, the relevant inquiry is whether the policy in question is actually and effectively enforced through the city’s review mechanisms. Thus in this case, a policy prohibiting lateral transfers for unconstitutional or discriminatory reasons would not shield the city from liability if an official possessing final policymaking authority over such transfers acted in violation of the prohibition, because the CSC would lack jurisdiction to review the decision and thus could not enforce the city policy. Where as here, however, the official merely possesses discretionary authority over transfers, the city policy is irrelevant, because the official’s actions cannot subject the city to liability in any event. 146 OCTOBER TERM, 1987 Brennan, J., concurring in judgment 485 U. S. cials may well have policymaking authority, that hardly ends the matter; the question before us is whether the officials responsible for respondent’s allegedly unlawful transfer were final policymakers. As I have previously indicated, I do not believe that CD A Director Frank Hamsher possessed any policymaking authority with respect to lateral transfers and thus I do not believe that his allegedly improper decision to transfer respondent could, without more, give rise to municipal liability. Although the plurality reaches the same result, it does so by reasoning that because others could have reviewed the decisions of Hamsher and Killen, the latter officials simply could not have been final policymakers. This analysis, however, turns a blind eye to reality, for it ignores not only the lower court’s determination, nowhere disputed, that CSC review was highly circumscribed and deferential, but also the fact that in this very case the CSC refused to judge the propriety of Hamsher’s transfer decision because a lateral transfer was not an “adverse” employment action falling within its jurisdiction. Nor does the plurality account for the fact that Hamsher’s predecessor, Donald Spaid, promulgated what the city readily acknowledges was a binding policy regarding secondary employment;8 although the CSC ultimately modified the sanctions respondent suffered as a result of his apparent failure to comply with that policy, the record is devoid of any suggestion that the CSC reviewed the substance or validity of the policy itself. Under the plurality’s analysis, therefore, even the hollowest promise of review is sufficient to divest all city officials save the mayor and governing legislative body of final policy-making authority. While clarity and ease of application may 8 8 Although the plurality is careful in its discussion of the facts to label Director Spaid’s directive a “requirement” rather than a “policy,” the city itself draws no such fine semantic distinctions. Rather, it states plainly that Spaid “promulgated a ‘secondary employment’ policy that sought to control outside employment by CDA architects,” and that “[respondent] resented the policy . . . .” Brief for Petitioner 2-3 (emphasis added). ST. LOUIS v. PRAPROTNIK 147 112 Stevens, J., dissenting commend such a rule, we have remained steadfast in our conviction that Congress intended to hold municipalities accountable for those constitutional injuries inflicted not only by their lawmakers, but also “by those whose edicts or acts may fairly be said to represent official policy.” Monell, 436 U. S., at 694. Because the plurality’s mechanical “finality” test is fundamentally at odds with the pragmatic and factual inquiry contemplated by Monell, I cannot join what I perceive to be its unwarranted abandonment of the traditional factfinding process in § 1983 actions involving municipalities. Finally, I think it necessary to emphasize that despite certain language in the plurality opinion suggesting otherwise, the Court today need not and therefore does not decide that a city can only be held liable under § 1983 where the plaintiff “prove[s] the existence of an unconstitutional municipal policy.” See ante, at 128. Just last Term, we left open for the second time the question whether a city can be subjected to liability for a policy that, while not unconstitutional in and of itself, may give rise to constitutional deprivations. See Springfield v. Kibbe, 480 U. S. 257 (1987); see also Oklahoma City v. Tuttle, 471 U. S. 808 (1985). That question is certainly not presented by this case, and nothing we say today forecloses its future consideration. IV For the reasons stated above, I concur in the judgment of the Court reversing the decision below and remanding the case so that the Court of Appeals may determine whether respondent’s layoff resulted from the actions of any improperly motivated final policymakers. Justice Stevens, dissenting. If this case involved nothing more than a personal vendetta between a municipal employee and his superiors, it would be quite wrong to impose liability on the city of St. Louis. In fact, however, the jury found that top officials in the city administration, relying on pretextual grounds, had taken a se 148 OCTOBER TERM, 1987 Stevens, J., dissenting 485 U. S. ries of retaliatory actions against respondent because he had testified truthfully on two occasions, one relating to personnel policy and the other involving a public controversy of importance to the Mayor and the members of his cabinet. No matter how narrowly the Court may define the standards for imposing liability upon municipalities in § 1983 litigation, the judgment entered by the District Court in this case should be affirmed. In order to explain why I believe that affirmance is required by this Court’s precedents,1 it is necessary to begin with a more complete statement of the disputed factual issues that the jury resolved in respondent’s favor, and then to comment on the procedural posture of the case. Finally, I shall discuss the special importance of the character of the wrongful conduct disclosed by this record. I The city of St. Louis hired respondent as a licensed architect in 1968. During the ensuing decade, he was repeatedly 1 This would, of course, be an easy case if the Court disavowed its dicta in Part II of the opinion in Monell v. New York City Dept, of Social Services, 436 U. S. 658, 691-695 (1978). See id., at 714 (Stevens, J., concurring in part). Like many commentators who have confronted the question, I remain convinced that Congress intended the doctrine of respondeat superior to apply in § 1983 litigation. See Oklahoma City v. Tuttle, 471 U. S. 808, 834-844 (1985) (Stevens, J., dissenting); Pembaur v. Cincinnati, 475 U. S. 469, 489, n. 4 (1986) (Stevens, J., concurring in part and concurring in judgment); see also Whitman, Government Responsibility for Constitutional Torts, 85 Mich. L. Rev. 225, 236, n. 43 (1986). Given the Court’s reiteration of the contrary ipse dixit in Monell and subsequent opinions, however, see Oklahoma City n. Tuttle, supra, at 818; Pembaur v. Cincinnati, supra, at 477-480, I shall join the Court’s attempt to draw an intelligible boundary between municipal agents’ actions that bind and those that do not. Since it represents a departure from Congress’ initial intention that respondeat superior principles apply in this context, this endeavor necessarily involves the Court in some consideration of “new theory,” see ante, at 125, n. 2 (plurality). Even so, we should be guided by the congressional purposes that motivated the enactment of § 1983 rather than by a nonstatutory judge-made presumption that gives “extremely wide latitude” to a profusion of “local preferences.” Ante, at 124. ST. LOUIS v. PRAPROTNIK 149 112 Stevens, J., dissenting promoted and consistently given “superior” performance ratings. In April 1980, while serving as the Director of Urban Design in the Community Development Agency (CDA), he was recommended for a two-step salary increase by his immediate superior. See 3 Record 1-51. Thereafter, on two occasions he gave public testimony that was critical of official city policy. In 1980 he testified before the Civil Service Commission (CSC) in support of his successful appeal from a 15-day suspension. In that testimony he explained that he had received advance oral approval of his outside employment and voiced his objections to the requirement of prior written approval.2 The record demonstrates 2 “Q. [Mr. Oldham, respondent’s attorney] Mr. Praprotnik, during this period of time, was there a salary limit on salaries imposed by the City Charter? “A. [Mr. Praprotnik] Yes. It was established at $25,000 annually. “Q. All right. And were employees in CDA permitted to have secondary employment— “A. Yes, they were. “Q. And were you required to fill out any particular type of form or document? “A. Yes. We had to fill out an employee secondary employment questionnaire on an annual basis at the time of our review of our service rating. “Q. Now, did you fill out a secondary employment form? “A. Yes, I did, for each year. “Q. Now. Were you then at any time suspended for a matter involving the secondary employment? “A. Yes. I was suspended in April, April 29th, 1980, for failure to provide information to my immediate supervisors. “Q. And did you provide that information to your immediate supervisors? “A. Yes, I did. “Q. Did you fill out a form which gave, in detail, the places where you had worked? “A. Yes. As had always been required in the past, I had filled out the questionnaire and submitted it each year explaining that I had practiced architecture. [Footnote 2 is continued on p. 150] 150 OCTOBER TERM, 1987 Stevens, J., dissenting 485 U. S. that this testimony offended his immediate superiors at the CDA.* 3 In 1981 respondent testified before the Heritage and Urban Design Commission (HUD) in connection with a pro “Q. Now, after you were suspended, did you take any action to protest that suspension or petition anybody for correction of the action taken against you? “A. Yes. I had appealed that to the Civil Service Commission. “Q. And after the hearing, was there a decision by the Commission? “A. Yes. The Commission had ruled in favor of myself. “Q. Could you tell me what your length of suspension was? “A. It was for fifteen days. “Q. And were you reinstated with back pay? “A. Yes, I was.” 3 Record 1-45-1-47. “A. [Mr. Praprotnik to Ms. Ronzio, petitioner’s attorney] I had been singled out to provide this information. No one else, as was—in the Civil Service Commission, no one else was asked to do this, to provide the listing of clients. And this was—and I had indicated the reason for that, because of the Standards of ethical practice.” 4 id., at 2-35. 3“Q. [Mr. Oldham] And in this rating, what recommendation is made for you? “A. [Mr. Praprotnik] This recommendation is—this is October 30th, 1980. This is a recommendation for a two-step decrease in salary. “Q. Did you ever discuss with Mr. Kindleberger [Director of Planning, CDA] the reason why you were given two ratings on almost the same day, one for no change and one for a two-step decrease? “A. Yes. I could not understand, you know, with the same evaluation performance being similar, that—at one point the recommendation of a two-step increase—and this occurring shortly thereafter with a two-step decrease. “Q. All right. What did Mr. Kindleberger say to you about that? “A. At the time, it was that, ‘The director, Mr. Spaid [Director, CDA, until April, 1981], is very down on you.’ That was his exact words. “Q. Did he tell you why he was down on you? “A. He stated that I had lied before the Commission, the Civil Service Commission.” 3 id., at 1-54—1-55. “A. [Mr. Kindleberger to Ms. Ronzio] I guess I was somewhat irritated at the whole process at this point. And I thought that Mr. Praprotnik had gotten an adequate rating and that he was being dealt with fairly and that he was not being as cooperative as he might. I also thought, and still believe, that the process for appealing a rating was one that involved ST. LOUIS v. PRAPROTNIK 151 112 Stevens, J., dissenting posal to acquire a controversial rusting steel sculpture by Richard Serra. In his testimony he revealed the previously undisclosed fact that an earlier city administration had rejected an offer to acquire the same sculpture, and also explained that the erection of the sculpture would require the removal of structures on which the city had recently expended about $250,000.* 4 This testimony offended top offi the Department of Personnel looking at the rating and participating in some kind of conciliatory procedures of the kind that were described earlier by Mr. Duffe [City Director of Personnel], whereby an attempt was made to get the individual that was unsatisfied and the supervisor together and get them talking to each other. And that after that, if there was still dissatisfaction, there was a process of going through the Civil Service Commission. And I thought it was inappropriate for Jim Praprotnik and his lawyer to get involved before it got over to the Department of Personnel and I told that to Mr. Brewster [Deputy Director, CDA].” 5 id., at 3-230-3-231. “Q. [Mr. Oldham] Did Mr. Spaid say something to the effect that he was down on Praprotnik? “A. [Mr. Kindleberger] That sounds right. “Q. And that he felt he had not been honest, had not testified honestly at the Civil Service Commission, or words to that effect? “A. I don’t know if Mr. Spaid said it, but I know I felt it at the time.” 5 id., at 3-237. See also 3 id., at 1-57, 1-58, 1-60, 1-66, 4 id., at 2-94, 2-141. 4 “Q. [Mr. Oldham] I want to direct your attention to a period which involved a discussion of the Serra sculpture. Does that refresh your memory or do you have a recollection of that incident? “A. [Mr. Praprotnik] Yes, I do. “Q. What —could you tell me approximately when this incident occurred? “A. This was immediately prior to the erection of the rusting steel sculpture which we have right out here on Market Street, the erection of that. And it was a meeting of the Heritage and Urban Design Commission of which I served as liaison from the Community Development Agency. “Q. Were you requested to testify before the Commission? “A. Yes, I was requested by the chairperson of that Commission. “Q. And were you required to make some comment on the Serra sculpture and its appropriateness at that spot? [Footnote 4 is continued on p. 152] 152 OCTOBER TERM, 1987 Stevens, J., dissenting 485 U. S. cials of the city government, possibly including the Mayor, who supported the acquisition of the Serra sculpture, as well as respondent’s agency superiors.5 They made it perfectly “A. That’s correct. I was. And whether it conformed to the overall plan for the Gateway Mall, the center open space all the way down to the courthouse.” 4 id., at 2-3—2-4. “Q. [Mr. Oldham] Do you know anything about the time that Mr. Pra-protnik appeared before the Commission in regard to testimony involving the Serra sculpture? “A. [Ms. Buckley, Chairperson, HUD] Yes, I do because I asked him to attend that meeting of the Commission. “Mr. Praprotnik appeared and this was the first time I had seen him in this capacity. This was at this committee meeting of the Commission. He stated that the City had been presented the Serra sculpture once before. The people who were presenting it said this was the first time it was being presented to the City. “Q. Could you describe who was present in the hearing room and the amount of interest there was in regard to the Serra sculpture? “A. There was a great deal of interest. The hearing room was always filled because there were so many applicants of people [sic] who had projects they wanted to bring. But whenever something came in— “Q. Was the mayor’s office in there, too? “A. I don’t know all the people in the mayor’s office but, yes, I knew from the whispering around me and from some of the faces that were familiar that, yes, these were the mayor’s people, or at least the City people who came in to watch.” 4 id., at 2-88—2-90. 5“Q. [Mr. Oldham] All right. Now, after you testified before the Commission, did you have any conversation with Mr. Hamsher [Director, CDA, when respondent was transferred; elevated to Deputy Director of Development, Mayor’s Office, in June, 1982, and present at that position when respondent was laid off]? “A. [Mr. Praprotnik] Yes. I was called into the office immediately after that meeting the following morning. And together with Mr. Hamsher and also Mr. Kindleberger, was told that certain information that I had stated at that Commission meeting that I should have ‘muffed it.’ “Q. You shouldn’t have— “A. Meaning that I should have concealed it, you know, from their— from exposure to the Commission. [Footnote 5 is continued on p. 153] ST. LOUIS v. PRAPROTNIK 153 112 Stevens, J., dissenting clear that they believed that respondent had violated a duty of loyalty to the Mayor by expressing his personal opinion about the sculpture. Thus, defendant Hamsher testified: “Q. What information was Mr. Hamsher talking about? “A. This was regarding the City’s original expenditure of funds for that block amounting to an open space grant of approximately $250,000 to develop the block originally, and the City was going to remove all of that for erection of this rusting steel sculpture. “Q. Did that discussion result—was that discussion one of the factors that was used in your service rating? “A. Yes, it was.” 4 id., at 2-4—2-6. “Q. [Mr. Oldham] You did rate him on the Serra sculpture? “A. [Mr. Karetski, Deputy City Planning Director, CDA] That was a factor, yes.” 5 id., at 3-45. “Q. [Ms. Ronzio] [L]et me make a break at this point and ask you about something that happened while Mr. Praprotnik was at the Community Development Agency. There’s been some discussion of the Serra sculpture incident? “A. [Mr. Hamsher] Yes. “Q. Did you have occasion to reprimand Mr. Praprotnik for something he said concerning the Serra sculpture, the rusting steel sculpture as someone described it, downtown here? “A. I don’t know that reprimand is the right term. I did have a discussion about something that occurred on that sculpture, yes. “Q. Did you indicate you were displeased with what he had done? “A. Yes, I did. “Q. Will you tell us what it was you had the discussion with him about and what you were upset about? “A. Yes. I read in the newspaper one morning that Mr. Praprotnik was quoted, something about his personal opinion about the merit or lack of merit of the sculpture. And I was concerned about that because a decision had been made by the City administration that we all worked for, that we wanted to recommend—that the City administration wanted to recommend the installation of the Serra sculpture. “I happened to disagree with the decision myself. I’m not fond of the sculpture and wasn’t then. But the mayor was elected by the people and he made the decision. He was going to support the installation of the sculpture. “Therefore, it was my responsibility and the responsibility of others who worked for my agency to do so as well and not to express personal opinions 154 OCTOBER TERM, 1987 Stevens, J., dissenting 485 U. S. “I’m not fond of the sculpture and wasn’t then. But the mayor was elected by the people and he made the decision. He was going to support the installation of the sculpture. “Therefore, it was my responsibility and the responsibility of others who worked for my agency to do so in public forums about what that sculpture was going to be and what it would look like. “Q. Did you take any disciplinary actions such as suspension or reduction in pay? “A. No, I did not. I believe I sent Mr. Praprotnik a note about it to make him understand that I thought this was important, but that’s all my recollection was and I had a discussion with him. But I didn’t take any personnel action about it. Frankly, I didn’t give any further thought to it.” 5 id., at 3-179-3-181. “Q. [Mr. Oldham] Did you know that Mr. Praprotnik had been requested to appear before the Heritage and Urban Design Committee? “A. [Mr. Kindleberger] I think I did. “Q. Is it an obligation of a City employee who is requested to testify before one of these commissions to enter [sic] honestly and truthfully? “A. Well, I think the obligation for a senior management individual is to represent fairly the position of his boss which, in our case, happens to be the mayor. And I would—I just think that is something that is appropriate for senior management to do. “Q. Now, when he was asked whether or not this had been presented to the City before and he said that it had— “A. Well, obviously, any questions of fact, one should be truthful. “Q. And if he’s asked his professional opinion, what should he do? “A. Well, if someone is asked their own personal, professional opinion, they should render it. But one has to be awfully careful that you don’t somehow imply that is the staff’s opinion or that is the agency’s opinion. And I think it’s a question of judgment, but that is one of the things that senior managers need to have is judgment. “Q. The mayor was quite upset; wasn’t he? “A. I don’t know that for a fact. He never spoke to me about it. “Q. Isn’t it true the Pulitzer family was very interested in this? “A. The Serra sculpture? “Q. Yes. “A. Emily Pulitzer is a person who has long wanted that sculpture. “Q. She is connected with the Post-Dispatch? “A. I believe she is married to the publisher.” 5 id., at 3-249—3-251. ST. LOUIS v. PRAPROTNIK 155 112 Stevens, J., dissenting as well and not to express personal opinions in public forums about what that sculpture was going to be and what it would look like.” 5 id., at 3-180. Defendant Kindleberger made the same point: “Well, I think the obligation for a senior management individual is to represent fairly the position of his boss which, in our case, happens to be the mayor. And I would—I just think that is something that is appropriate for senior management to do.” 5 id., at 3-250. After this testimony respondent was the recipient of a series of adverse personnel actions that culminated in his transfer from an important management-level professional position to a rather menial assignment for which he was “grossly over qualified,” 3 id., at 1-80, and his eventual layoff.6 In 6 “Q. [Mr. Oldham] I’d like to direct your attention to March of 1982. Was that the period of time that there was a transfer? “A. [Mr. Praprotnik] Yes. [O]n March 23rd, I was called to the director’s office, Mr. Frank Hamsher, and was told that I would be transferred to the Heritage and Urban Design Commission. And this was two weeks prior to the pending layoff recommendations at the agency.” “Q. Did [Mr. Jackson, Commissioner, HUD] make any statement to you as to whether he had sought your services? “A. Yes. He stated that he didn’t want me in the first place, that he had requested a historic preservation planner for that position, which was several grades below my management position level.” “Q. Now, just prior to [the then unknown attempt to fire respondent, one year prior to his actual dismissal], did you receive a rating? “A. Yes, I did, in October [1982]. “Q. Let me hand you that rating, which is Plaintiff’s Exhibit 92, and ask you to look at the second page thereof. In that rating, does it make any statement about your qualifications or your overqualifications for the position? “A. Yes. It states in the paragraph related to ‘Have the duties in the employee’s position changed significantly during this rating period,’ it states—Mr. Jackson places in this space: ‘Mr. Praprotnik’s former position was as a supervisor at CDA . . . which included administration of his unit 156 OCTOBER TERM, 1987 Stevens, J., dissenting 485 U. S. preparing respondent’s service ratings after the Serra sculpture incident, his superiors followed a “highly unusual” procedure that may have violated the city’s personnel regulations.* 7 Moreover, management officials who were involved in implementing the decision to transfer respondent to a menial assignment made it clear that “there was no reason” for the transfer—except, it would seem, for the possible con- and supervision of staff. In his new capacity here, there is no supervision of any professional staff and, in fact, the original vacancy was for an historic preservation planner I or II and which is intended to function as a junior staff position to existing staff and for which Mr. Praprotnik is grossly overqualified.’” 3 id., at 1-66—1-67, 1-71, 1-79—1-80. “Q. [Mr. Oldham] Would you describe [Mr. Praprotnik’s tasks at HUD] as menial? “A. [Ms. Buckley] I would.” 4 id., at 2-88. 7 “Q. [Mr. Oldham] Is he entitled to know the basis on which the service rating is given? “A. [Mr. Brewster] That is standard operating procedure, I think, in any management procedure. Certainly, at CDA it was. “Q. So this [Mr. Kindleberger’s telling Mr. Brewster not to discuss the rating with Mr. Praprotnik] was unusual? “A. I would say highly unusual. “Q. After you made a study of the evaluation, what determinations did you make as to whether or not it had been properly and fairly done? “A. As I recall, I found several discrepancies for which I did write a memo of finding on—I don’t have it. “Q. Can you recall, Mr. Brewster? We have enough exhibits. If you can recall from your own memory? “A. Well, the substance of it, as I recall, would be that the so-called standards that they were rating Mr. Praprotnik on were standards that could not even be measured, either quantifiably or qualifiably. So, therefore, there were not, in any actuality, they did not have any merit to them. “And, as I recall, the two, Karetski, who was rater number one, and Kindleberger, who was rater number two, actually collaborated in the rating prior to the rating being done, which, in my estimation, was completely in violation of the City rules and regulations which specifically state that rater number one is not supposed to be influenced in his rating by any person.” 4 id., at 2-106-2-107, 2-109. ST. LOUIS v. PRAPROTNIK 157 112 Stevens, J., dissenting nection with “the Serra sculpture incident.”8 It is equally clear that the city’s asserted basis for respondent’s ultimate layoff in 1983—a lack of funds—was pretextual.9 Thus, evidence in the record amply supports the conclusion that respondent was first transferred and then laid off, not for fiscal and administrative reasons, but in retaliation for his public testimony before the CSC and HUD.10 It is undis 8 “Q. [Mr. Oldham] Did you ever discuss Mr. Praprotnik with Mr. Jack-son as to whether they needed his services in the facility? “A. [Ms. Buckley] I’ll have to go back a minute to the Serra sculpture incident. After that meeting, the major meeting where the Serra sculpture was approved by the Commission, unfortunately, it must have been two or three weeks or a month or so later that Mr. Jackson called me and said that Mr. Praprotnik was going to come over to the Heritage office. “He expressed, I guess I would say, disappointment and displeasure at this, saying there was no need. “On a separate occasion shortly after that, Mr. Killen also called me and said Mr. Praprotnik was coming and there was no reason for him to come.” 4 id., at 2-90. 9“Q. [Mr. Oldham] What’s the total [HUD] budget for [1982] then? “A. [Mr. Praprotnik] The total budget for the year was $144,339. “Q. And what is the total budget for [1984]? “A. The total budget is a hundred and fifty thousand. “Q. So there’s an increase of approximately $6,000? “A. Yes. “Q. Now, what was the reason given for your layoff? “A. Insufficient funds. “Q. Is that the only reason that they gave in your notice? “A. Yes.” 3 id., at 1-83, 1-85. 10 As respondent’s counsel put it in responding to petitioner’s motion for a directed verdict at the close of plaintiff’s evidence: “Plaintiff written reprimand contrary to thrust of the decision of the Civil Service Commission. That’s in evidence. That’s true. Required plaintiff to make secondary employment reports that weren’t required of others. There’s evidence to that effect. Reduced his staff from nine to three. There’s evidence of that allegation. Given plaintiff a low service rating on October 1st. There’s evidence of that. Transferring him to a nonmanagement, nonsupervisory junior staff position. There’s evidence 158 OCTOBER TERM, 1987 Stevens, J., dissenting 485 U. S. puted that respondent’s right to testify in support of his civil service appeal and his right to testify in opposition to the city’s acquisition of the Serra sculpture were protected by the First Amendment to the Federal Constitution. Given the jury’s verdict, the case is therefore one in which a municipal employee’s federal constitutional rights were violated by officials of the city government. There is, however, a dispute over the identity of the persons who were responsible for that violation. At trial, respondent relied on alternative theories: Either his immediate superiors at CDA (who were named as individual defendants) should be held accountable, or, if the decisions were made at a higher level of government, the city should be held responsible. The record contains a good deal of evidence of participation in the constitutional tort by respondent’s superiors at CDA, by those directly under the Mayor, and perhaps by the Mayor himself.* 11 Moreover, in closing argument, defense counsel to that. Failure to establish goals against which he could be measured. All of these things. Finally, we say laying plaintiff off from a position on December 30th for the pretextual reason of lack of funds and a furtherance of the conspiracy to remove plaintiff from the Civil Service Commission. There’s evidence of that, that he was laid off, that the reason was pretextual.” 5 id., at 3-26—3-27. 11 “Q. [Mr. Oldham] [T]here had to be a change in [HUD’s] budget in order for you to be brought on board; is that correct? “A. [Mr. Praprotnik] Yes. “Q. Now, in order to get a change of budget, who had to be involved in that? “A. That would involve the Board of Estimate and Apportionment, including the Mayor, the president of the Board of Aidermen, and the budget director—I’m sorry, the comptroller. “Q. The comptroller. Those three people? “A. Yes. “Q. They’re all high officials of the City. “A. That’s correct.” 3 id., at 1-74—1-75. “Q. [Ms. Ronzio] [A]fter you got transferred to Heritage and Urban Design in April or May of ’82, are you claiming that Frank Hamsher did anything to injure or damage you thereafter once you were transferred out from under his supervision? [Footnote 11 is continued on p. 159] ST. LOUIS v. PRAPROTNIK 159 112 Stevens, J., dissenting attempted to exonerate the three individual defendants by referring to the actions of higher officials who were not named as defendants.12 “A. [Mr. Praprotnik] Yes, I am. “Q. All right. What would that be? “A. That would be the control through the mayor’s office of the budget situation within the Community Development Agency and the recommendations of the staffing and the funding coming to the Heritage and Urban Design Commission. “Q. All right. Do you know what Mr. Hamsher’s position was after you were transferred to Heritage? Did he remain director of CD A? “A. He was director of CDA, yes, for a period of time after that. “Q. For how long? Do you know? “A. He had implemented the layoff [of various CDA personnel at the time respondent was transferred to HUD]. “Q. For how long? He implemented the layoff; that would have been in May. How long thereafter did he continue as director? “A. I don’t know when he was switched to the mayor’s office. “Q. Then he went to the mayor’s office as an assistant; right? “A. That’s correct. “Q. As an executive aide. “You are claiming that from the mayor’s office he controlled Heritage Department’s budget? “A. Yes. “Q. And how did that affect you? “A. It affected me by I was laid off for lack of funds to that agency. “Q. So how did Mr. Hamsher do that? “A. By control through the Community Development Agency and recommendations that could be made to its, you know, director at this time. “Q. He was not director of Community Development Agency. Are you still maintaining that he controlled their budget? “A. I’m saying that he influenced their budget. The mayor’s office played a very strong control within the influence of various City departments. “Q. [W]hat are you claiming, if anything, that Mr. Kindleberger did to damage you after you were out from under his supervision? “A. He had influenced the direction of the demise of duties, all the way up to that time, with the planner options that he had made available to Mr. Hamsher. “Q. I’m asking after you transferred. [Footnote 11 is continued on p. 160; footnote 12 is on p. 162] 160 OCTOBER TERM, 1987 Stevens, J., dissenting 485 U. S. Thus, we have a case in which, after a full trial, a jury reasonably concluded that top officials in a city’s administration, possibly including the Mayor, acting under color of “A. After the transfer? Yes, he could still play a strong role because he was retained within the mayor’s group and made recommendations to the Board of E&A that could have influenced the funding of our agency, the Heritage and Urban Design Commission. “Q. You’re using the word ‘could.’ Do you know for a fact that he did any of these things? “A. Well, the budget had to go through the Community Development Agency, the approval. I’m saying he could have had that influence. “Q. All right. So you don’t know for a fact that he did do anything? “A. I would say it was very likely that he would have had that influence.” “Q. [H]ow about Deborah Patterson [Director, CD A], who is also a defendant? Now, she never supervised you at all; is that correct? You were never under her supervision? “A. She did not, that’s correct. “Q. She became director of CDA after you had already left the agency? “A. That is correct. “Q. What, if anything, are you claiming that she did to damage you, to injure you? “A. There were meetings between my immediate supervisors at Heritage and Urban Design Commission and Deborah Patterson and CDA officials. So that influenced the budget going through and having to be approved by the Community Development Agency and also going through the mayor’s office and the Board of E&A.” 4 id., at 2-75—2-77, 2-81 — 2-82. “Q. [Ms. Ronzio] [W]hy do you think [Mr. Praprotnik] wasn’t being treated fairly? “A. [Mr. Zelsman, architect colleague of respondent at CDA] In my opinion, it was someone above him who did not want him in that position.” 4 id., at 2-97—2-98. [From deposition; read at trial] “Q. [Mr. Oldham] Were there meetings in the mayor’s office which involved you and his advisors and the mayor concerning the function and purpose of CDA? “A. [Mr. Hamsher] I have had countless such meetings. “Q. [Mr. Praprotnik] hadn’t requested the transfer? “A. No. “Q. Had Mr. Jackson requested the transfer? [Footnote 11 is continued on p. 161; footnote 12 is on p. 162] ST. LOUIS v. PRAPROTNIK 161 112 Stevens, J., dissenting law, took retaliatory action against a gifted but freethinking municipal employee for exercising rights protected by the First Amendment to the Federal Constitution. The legal “A. No. “Q. It was done on your initiative then? “A. It was done upon approval by the mayor of the transfer. It was done by me, Mr. Jackson, and Mr. Nash [City Director of the Department of Public Safety], all of whom assigned the appropriate paperwork to transfer Mr. Praprotnik. “Q. Did Mr. Nash request the transfer? “A. No, but he approved it. “Q. So nobody from Heritage and Urban Design requested the transfer? “A. That’s correct. “Q. And it was a decision that was made in the mayor’s office and carried out by you; is that correct? “A. It was a recommendation I made to the mayor, and the mayor concurred with it, and Mr. Nash and Mr. Jackson and myself carried it out.” 4 id., at 2-174, 2-177-2-178. [From deposition; read at trial] “Q. [Mr. Oldham] Who would have the authority to take functions out of one appointing authority and move them over to another appointing authority? Who would have that authority? “A. [Mr. Duffe] Well, it depends on the situation. The Board of Estimate and Apportionment in some cases; in other cases it would be the mayor to the best of my knowledge.” 4 id., at 2-180. [From deposition; read at trial] “Q. [Mr. Oldham] Anybody else other than Mr. Hamsher, and yourself, and the mayor, who had the final decisions on these matters [transfer of functions between agencies]? “A. [Mr. Edwards, City Executive Director of Development] Well, particularly I guess, the mayor had the final decision. As I recall the recommendations of Mr. Hamsher were adopted, you know, pretty generally. I don’t remember any major divergence from his recommendation.” 4 id., at 2-185-2-186. “Q. [Ms. Ronzio] What do you do, Mr. Hamsher? What is your occupation? “A. [Mr. Hamsher] I am the counsel for development in the mayor’s office, City of Saint Louis. [Discussion of CDA’s 1982 layoffs] “Q. Did you voice your concerns to the mayor? “A. Oh, yes. “Q. What was his reaction to your concerns? [Footnote 11 is continued on p. 162; footnote 12 is on p. 162] 162 OCTOBER TERM, 1987 Stevens, J., dissenting 485 U. S. question is whether the city itself is liable for such conduct under § 1983.13 II In the trial court there was little, if any, dispute over the governing rules of law. In advance of trial, the city filed a “A. He listened. He and I discussed it back and forth. And he was elected by the people so he made the decision. “Q. He said ‘Go ahead and lay off’? “A. Yes.” 5 id., at 3-134, 3-167. “Q. [Mr. Oldham] [Y]ou indicated that you work for the mayor; is that correct? “A. [Mr. Hamsher] Yes. “Q. And doesn’t the mayor keep a pretty tight rein on operations within the City? “A. Sure. “Q. Isn’t it fair to say, Mr. Hamsher, that you initiated the [transfer], that you had sort of recommended it through the mayor’s office, sort of pushed to get it done? “A. I wouldn’t say I pushed to get it done. I recommended it to the mayor. The mayor made a decision. And when the mayor makes a decision, all of us who work for him try to carry it out.” 5 id., at 3-184— 3-185, 3-200. 12 “Now, another thing I would seriously like you to consider is, who is not a defendant in this matter. Who is not a defendant? Donald Spaid is not a defendant. Donald Spaid is the guy who laid that first suspension on or who was the one—not laid the suspension on, but set up that secondary employment policy. He is the man who allegedly, according to Mr. Pra-protnik, got so angry that he would go to any lengths to retaliate, directed his subordinates to retaliate. “Don Spaid is not a defendant in this case. Okay? “Who laid Jim Praprotnik off? Who really laid him off? Who signed off on the form? Rob Killen signed the form. At the time Mr. Praprotnik was at Heritage and Urban Design and got laid off, Rob Killen was his appointing authority. It was his decision. He’s the one who prepared that budget that went to Deborah Patterson. “Who else is not a defendant? Rob Killen’s boss, Tom Nash. Tom Nash allegedly approved it and went along with Rob Killen. Do you see him here? Nope. Let’s hang it on these guys.” 6 id., at 4-50—4-51 (emphasis added). 13 The concurrence disapproves of any reliance on evidence regarding the reaction of various high officials to respondent’s Serra sculpture testimony ST. LOUIS v. PRAPROTNIK 163 112 Stevens, J., dissenting motion for summary judgment that the District Court ultimately denied because the record contained an affidavit stating that respondent “was transferred due to ‘connivance’ of the mayor, the mayor’s chief of staff, and the city’s personnel director.” 1 Record 130. No one appears to have questioned the proposition that if such facts could be proved at trial, the city could be held liable.14 on the ground that “the jury instructions concerning respondent’s First Amendment claim refer exclusively to the exercise of his appellate rights before the CSC and make no mention whatever of his public testimony.” Ante, at 142, n. 5. Two points should suffice in response. First, the instruction in question told the jury that it “must” find for respondent if it found certain facts relating to the CSC appeals, but did not preclude the jury from finding for respondent on other grounds as well. Second, as the concurrence itself recognizes, see ante, at 135, a separate instruction, which I quote below in the text at n. 15, told the jury it could hold the city liable for actions committed by high enough officials. This instruction did not limit the field of high officials’ actions that could give rise to municipal liability. The concurrence also states that the record fails to provide “sufficient evidence of complicity on the part of other municipal policymakers such that we may sustain the jury’s verdict against petitioner on a conspiracy theory neither espoused nor addressed by the court below.” Ante, at 142, n. 5. But we are reviewing the Court of Appeals’ judgment, not its opinion, and however flawed the latter, the former must be sustained if sufficient evidence exists to support, under a proper view of municipal liability, the verdict actually rendered. Moreover, as I discuss in greater detail in Part II, the jury was given wide rein to examine the conduct of the city’s officials and to conclude whether or not high officials retaliated against respondent’s exercise of his constitutional right to freedom of speech. The lengthy quotations from the record make it clear that sufficient evidence was introduced to support the jury’s verdict. 14 Petitioner points to the following argument made in support of its motion for summary judgment: “In the instant case, Plaintiff has failed to even allege the existence of any such [municipal] policy. In fact, Plaintiff refers to City ‘policy’ only in one instance in his complaint—at paragraph 29(c), wherein he claims the City’s layoff policy . . . was not followed. In the absence of allegations of impermissible policy, or of facts indicative that such policy exists, the City, itself, may not be held liable.” Memorandum in Support of Motion for Summary 164 OCTOBER TERM, 1987 Stevens, J., dissenting 485 U. S. After respondent’s evidence had been presented at trial, the city made a motion for a directed verdict, again advancing the argument that there was insufficient evidence in the record to support a judgment against the city. The argument on that motion does not indicate that the parties had any dispute about the applicable rules of law. For counsel for the city argued: “I understand that you can be liable—a municipality can be held liable if its high ranking officials are allowed to violate someone’s constitutional rights. I fail to see how you can find any evidence that the City of St. Louis did that.” 5 id., at 3-28. The jury obviously disagreed with this assessment of the evidence. Moreover, the judge denied that motion, initially and at the close of all evidence, as well as the city’s motion for a judgment notwithstanding the verdict. Finally, the ultimate instruction to the jury on the issue of municipal liability was in fact proposed by the city’s attorney, as the plurality acknowledges, ante, at 119; see Brief for Respondent 48; Reply Brief for Petitioner 6: “As a general principle, a municipality is not liable under 42 U. S. C. § 1983 for the actions of its employees. However, a municipality may be held liable under 42 U. S. C. § 1983 if the allegedly unconstitutional act was Judgment or, in the Alternative, for Judgment on the Pleadings 16, Reply Brief for Petitioner 5 (emphasis in original). This argument, like all of petitioner’s contentions in the trial court on the subject of municipal liability, was addressed to the sufficiency of respondent’s factual support for binding the city, not to any legal issue regarding who could and who could not bind the city. The District Court, indeed, initially granted summary judgment for the city on the ground that “the Court is unable to discern any suggestion that defendants’ allegedly wrongful actions were in accordance with city policy.” 1 Record 126. But after receiving respondent’s motion for reconsideration, accompanied by his affidavit, discussed in the text, supra, the District Court reversed itself and denied the city’s motion. ST. LOUIS v. PRAPROTNIK 165 112 Stevens, J., dissenting committed by an official high enough in the government so that his or her actions can be said to represent a government decision.” Instruction No. 15, App. 113.15 In my opinion it is far too late for the city to contend that the jury instructions on municipal liability were insufficient or erroneous.16 In Oklahoma City v. Tuttle, 471 U. S. 808 (1985), we permitted an objection to an instruction by defendant for the first time on appeal only because plaintiff failed to raise the contemporaneous-objection argument until its brief on the merits in this Court. We stated that such arguments “should be brought to our attention no later than in respondent’s brief in opposition to the petition for certiorari.” Id., at 816 (emphasis in original). In this case, respondent properly pointed out in his response to the petition for a writ of 15 Proposing this instruction made good sense as litigation strategy, for respondent had sued not only the city but also three individual city officials, Frank Hamsher, Charles Kindleberger, and Deborah Patterson. Presumably the city’s attorney, who was representing both the city and the officials, hoped that the jury would focus on the individual defendants, exonerate them, and, having focused on these defendants, hold the city innocent as well by concluding that higher-ups were not implicated. As we know from the verdict — judgment for the individual defendants but against the city—this strategy partially failed. Although petitioner argues that the verdicts were inconsistent, they actually make perfect sense in light of the evidence that officials in the Mayor’s office, possibly including the Mayor himself, and various agency heads participated in a deliberate plan to deprive respondent of his job in violation of his First Amendment rights. 16 Federal Rule of Civil Procedure 51 is quite clear about a litigant’s method of preserving objections to instructions: “At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury. The court, at its election, may instruct the jury before or after argument, or both. No party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection. Opportunity shall be given to make the objection out of the hearing of the jury.” (Emphasis added.) 166 OCTOBER TERM, 1987 Stevens, J., dissenting 485 U. S. certiorari that petitioner had failed to object to the relevant jury instruction. Brief in Opposition 10-11.17 Apparently acknowledging that this case cannot be decided on the basis of any possible error in any of the jury instructions, the plurality views petitioner’s motions for summary judgment and a directed verdict as raising and preserving a legal question concerning the standard for determining municipal liability. Ante, at 120. But these motions did not raise any legal issue that was disputed. It is most unfair to permit a defeated litigant in a civil case tried to a verdict before a jury to advance legal arguments that were not made in the District Court, especially when that litigant agrees, both in its motions and proposed instructions, with its opponent’s view of the law.18 Although, as the plurality points out, the 17 In the Court of Appeals the city had argued that the trial court should have accepted the following instruction regarding municipal liability: “An isolated incident of illegal conduct on the part of a municipality’s agents, servants or employees is not sufficient to establish a governmental custom, usage or official policy such as would give rise to liability on the part of a municipality pursuant to 42 U. S. C. § 1983.” Instruction No. A, App. 127. The Court of Appeals properly upheld the trial court’s rejection of this instruction, see Pembaur v. Cincinnati, 475 U. S. 469 (1986), and petitioner does not take issue with this holding. 18 The plurality states that petitioner’s motions, although “much less detailed than the arguments it now makes in response to the decision of the Court of Appeals,” nonetheless properly “preserve[d] the issue raised in its petition for certiorari.” Ante, at 120. But petitioner made no arguments in these motions, much less sparsely detailed ones, on behalf of any legal standard for municipal liability. The plurality does not overcome the fact that petitioner’s motions were made on the basis of evidentiary insufficiency. Finally, even if the mere making of motions for summary judgment, directed verdict, and judgment notwithstanding the verdict could preserve any legal issue that might arise in a case—a proposition we should be slow to accept—such preservation should quickly spoil when the moving party admits, in both an offered instruction and an argument on behalf of one of the motions, that the law is as its opponent would have it. As I have shown above, petitioner did just that in offering Instruction No. 15 and in arguing in support of a directed verdict. ST. LOUIS v. PRAPROTNIK 167 112 Stevens, J., dissenting question presented in the certiorari petition “was manifestly framed in light of the holding of the Court of Appeals,” ante, at 119, the legal issue of municipal liability had never been raised in the District Court. Given the procedural history, it is not only unfair to respondent, but also poor judicial practice, to use this case as a bulldozer to reshape “a legal landscape whose contours are ‘in a state of evolving definition and uncertainty.’ ” Ante, at 120 (plurality opinion) (citation omitted). It would be far wiser in the long run simply to resolve the issues that have been properly framed by the litigants and preserved for review. Nevertheless, in view of the fact that the Court has “set out again to clarify the issue that we last addressed in Pembaur,” ante, at 124 (plurality opinion), it is appropriate to explain my view of how our precedents in this area apply to this case. HI In Monell v. New York City Dept, of Social Services, 436 U. S. 658 (1978), we held that municipal corporations are “persons” within the meaning of 42 U. S. C. § 1983. Since a corporation is incapable of doing anything except through the agency of human beings, that holding necessarily gave rise to the question of what human activity undertaken by agents of the corporation may create municipal liability in § 1983 litigation.19 The first case dealing with this question was, of course, Monell, in which female employees of the Department of So 19 The “theme” of Monell—“that some basis for government liability other than vicarious liability for the acts of individuals must be found”—has proved to be a “difficult” one largely because “there is no obvious way to distinguish the acts of a municipality from the acts of the individuals whom it employs.” Whitman, supra n. 1, at 236. In other words, every time a municipality is held liable in tort, even in a case like Monell, actions of its human agents are necessarily involved. Accordingly, our task is not to draw a line between the actions of the city and the actions of its employees, but rather to develop a principle for determining which human acts should bind a municipality. 168 OCTOBER TERM, 1987 Stevens, J., dissenting 485 U. S. cial Services and the Board of Education of New York City challenged the constitutionality of a citywide policy concerning pregnancy leave. Once it was decided that the city was a “person,” it obviously followed that the city had to assume responsibility for that policy. Even if some departments had followed a lawful policy, I have no doubt that the city would nevertheless have been responsible for the decisions made by either of the two major departments that were directly involved in the litigation. In Owen v. City of Independence, 445 U. S. 622 (1980), the Court held that municipalities are not entitled to qualified immunity based on the good faith of their officials. As a premise to this decision, we agreed with the Court of Appeals that the city “was responsible for the deprivation of petitioner’s constitutional rights.” Id., at 633; see also id., at 655, n. 39. Petitioner had been fired as City Chief of Police without a notice of reasons and without a hearing, after the City Council and the City Manager had publicly reprimanded him for his administration of the Police Department property room. This isolated personnel action was clearly not taken pursuant to a rule of general applicability; nonetheless, we had no problem with the Court of Appeals’ conclusion that the action of the City Council and City Manager was binding on the city.20 20 Since Owen, Members of the Court have offered varying explanations for that conclusion: “[T]he release of the information was an official action—that is, a policy or custom—of the city,” Oklahoma City v. Tuttle, 471 U. S., at 832 (Brennan, J., concurring in the judgment); “[A] municipality may be liable under § 1983 for a single decision by its properly constituted legislative body—whether or not that body had taken similar action in the past or intended to do so in the future—because even a single decision by such a body unquestionably constitutes an act of official government policy,” Pembaur v. Cincinnati, 475 U. S., at 480 (Brennan, J.); “Formal procedures that involve, for example, voting by elected officials, prepared reports, extended deliberation, or official records indicate that the resulting decisions taken ‘may fairly be said to represent official policy.’” Id., at 500 (Powell, J., dissenting). Today, the plurality offers an explanation for Owen similar to that offered by Justice Powell in his ST. LOUIS v. PRAPROTNIK 169 112 Stevens, J., dissenting In the next municipal liability case, the Court held that an isolated unconstitutional seizure by a sole police officer did not bind the municipality. Oklahoma City v. Tuttle, 471 U. S. 808 (1985).21 Thus, that holding rejected the commonlaw doctrine of respondeat superior as the standard for measuring municipal liability under § 1983. It did not, of course, reject the possibility that liability might be predicated on the conduct of management level personnel with policymaking authority. Finally, in Pembaur v. Cincinnati, 475 U. S., at 471, we definitively held that a “decision by municipal policymakers on a single occasion” was sufficient to support an award of damages against the municipality. In Pembaur, a County Prosecutor had advised County Sheriffs at the doorstep of a recalcitrant doctor to “go in and get [the witnesses]” to alleged charges of fraud by the doctor. Id., at 473. Because the Sheriffs possessed only arrest warrants for the witnesses and not a search warrant for the doctor’s office as well, the Pembaur dissent: “We have assumed that an unconstitutional governmental policy could be inferred from a single decision taken by the highest officials responsible for setting policy in that area of the government’s business.” Ante, at 123. For its part, the concurrence’s explanation of Owen resembles that offered by Justice Brennan in Pembaur: “Nor have we ever doubted that a single decision of a city’s properly constituted legislative body is a municipal act capable of subjecting the city to liability.” Ante, at 138; see also ante, at 139, n. 3. But neither opinion explains why a single personnel decision by a legislature ought bind a municipality any differently than any other duly authorized personnel decision. 21 Although no one opinion commanded a majority of the Court, the narrowest reason for the holding was stated by Justice Brennan. The jury had been instructed that it could infer from the seizure alone that the city had an unconstitutional policy of inadequate police training. Such an inference, according to Justice Brennan, would be little more than respondeat superior in disguise. Whether independent proof of inadequate police training could result in municipal liability was a question that would have to wait for another day. See Springfield v. Kibbe, 480 U. S. 257 (1987) (dismissing as improvidently granted a writ of certiorari in a case raising this issue). Central to the holding in Tuttle was the fact that no high official was found to have been involved in the unconstitutional act. 170 OCTOBER TERM, 1987 Stevens, J., dissenting 485 U. S. advice was unconstitutional, see Steagald v. United States, 451 U. S. 204 (1981), and the question was whether the County Prosecutor’s isolated act could subject the county to damages under § 1983 in a suit by the doctor. In the part of his opinion that commanded a majority of the Court, Justice Brennan wrote: “[A] government frequently chooses a course of action tailored to a particular situation and not intended to control decisions in later situations. If the decision to adopt that particular course of action is properly made by that government’s authorized decisionmakers, it surely represents an act of official government ‘policy’ as that term is commonly understood. More importantly, where action is directed by those who establish governmental policy, the municipality is equally responsible whether that action is to be taken only once or to be taken repeatedly.” Pembaur v. Cincinnati, 475 U. S., at 481 (footnote omitted). Since the County Prosecutor was authorized to establish law enforcement policy, his decision in that area could be attributed to the county for purposes of § 1983 liability. As Justice Powell correctly pointed out in his dissent, “the Court . . . focus[ed] almost exclusively on the status of the decisionmaker.” 7d.,at498. Thus, the Court has permitted a municipality to be held liable for the unconstitutional actions of its agents when those agents enforced a rule of general applicability (Monell); were of sufficiently high stature and acted through a formal process (Owen); or were authorized to establish policy in the particular area of city government in which the tort was committed (Pembaur). Under these precedents, the city of St. Louis should be held liable in this case. Both Pembaur and the plurality and concurring opinions today acknowledge that a high official who has ultimate control over a certain area of city government can bind the city ST. LOUIS v. PRAPROTNIK 171 112 Stevens, J., dissenting through his unconstitutional actions even though those actions are not in the form of formal rules or regulations. See Pembaur v. Cincinnati, supra, at 479-481; ante, at 123 (plurality), at 139-140 (concurrence). Although the Court has explained its holdings by reference to the nonstatutory term “policy,” it plainly has not embraced the standard understanding of that word as covering a rule of general applicability. Instead it has used that term to include isolated acts not intended to be binding over a class of situations. But when one remembers that the real question in cases such as this is not “what constitutes city policy?” but rather “when should a city be liable for the acts of its agents?”, the inclusion of single acts by high officials makes sense, for those acts bind a municipality in a way that the misdeeds of low officials do not. Every act of a high official constitutes a kind of “statement” about how similar decisions will be carried out; the assumption is that the same decision would have been made, and would again be made, across a class of cases. Lower officials do not control others in the same way. Since their actions do not dictate the responses of various subordinates, those actions lack the potential of controlling governmental decisionmaking; they are not perceived as the actions of the city itself. If a county police officer had broken down Dr. Pembaur’s door on the officer’s own initiative, this would have been seen as the action of an overanxious officer, and would not have sent a message to other officers that similar actions would be countenanced. One reason for this is that the County Prosecutor himself could step forward and say “that was wrong”; when the County Prosecutor authorized the action himself, only a self-correction would accomplish the same task, and until such time his action would have countywide ramifications. Here, the Mayor, those working for him, and the agency heads are high-ranking officials; accordingly, we must assume that their actions have citywide ramifications, both through their similar response to a like 172 OCTOBER TERM, 1987 Stevens, J., dissenting 485 U. S. class of situations, and through the response of subordinates who follow their lead.22 Just as the actions of high-ranking and low-ranking municipal employees differ in nature, so do constitutional torts differ. An illegal search (Pembaur) or seizure (Tuttle) is quite different from a firing without due process (Owen); the retaliatory personnel action involved in today’s case is in still another category. One thing that the torts in Pembaur, Tuttle, and Owen had in common is that they occurred “in the open”; in each of those cases, the ultimate judgment of unconstitutionality was based on whether undisputed events (the breaking-in in Pembaur, the shooting in Tuttle, the firing in Owen) comported with accepted constitutional norms. But 22 That high officials may bind a municipality in ways that low officials may not should not surprise, for the pyramidal structure of authority pervades the law. For instance, the law of agency distinguishes between a general agent and a special agent; the former is “authorized to conduct a series of transactions involving a continuity of service,” while the latter is “authorized to conduct a single transaction or a series of transactions not involving continuity of service.” Restatement (Second) of Agency §§ 3(1), (2) (1958). The distinction matters because only a general agent “subjects his principal to liability for acts done on his account which usually accompany or are incidental to transactions which the agent is authorized to conduct if, although they are forbidden by the principal, the other party reasonably believes that the agent is authorized to do them and has no notice that he is not so authorized.” Id., § 161. . A special agent, to the contrary, “has no power to bind his principal by contracts or conveyances which he is not authorized or apparently authorized to make,” with some exceptions. Id., § 161 A. A general agent thus binds his principal even through unauthorized acts precisely because those dealing with him perceive him as possessing broad authority to act on behalf of his principal. A special agent, possessing and known to possess only limited authority, cannot bind his principal for unauthorized acts because those dealing with him are on notice that his authority extends only so far. Likewise, a high municipal official can bind his principal (the city) for unauthorized actions because others—both lower officials and members of the public with whom he deals—perceive him as acting with broad authority and rely upon his actions in organizing their own behavior. The distinction between general agents and special agents has a firm “basis in the law.” See ante, at 125, n. 2 (plurality opinion). ST. LOUIS v. PRAPROTNIK 173 112 Stevens, J., dissenting the typical retaliatory personnel action claim pits one story against another; although everyone admits that the transfer and discharge of respondent occurred, there is sharp, and ultimately central, dispute over the reasons—the motivation— behind the actions. The very nature of the tort is to avoid a formal process. Owen’s relevance should thus be clear. For if the Court is willing to recognize the existence of municipal policy in a nonrule case as long as high enough officials engaged in a formal enough process, it should not deny the existence of such a policy merely because those same officials act “underground,” as it were. It would be a truly remarkable doctrine for this Court to recognize municipal liability in an employee discharge case when high officials are foolish enough to act through a “formal process,” but not when similarly high officials attempt to avoid liability by acting on the pretext of budgetary concerns, which is what this jury found based on the evidence presented at trial. Thus, holding St. Louis liable in this case is supported by both Pembaur and Owen. We hold a municipality liable for the decisions of its high officials in large part because those decisions, by definition, would be applied across a class of cases. Just as we assume in Pembaur that the County Prosecutor (or his subordinates) would issue the same break-do wn-the-door order in similar cases, and just as we assume in Owen that the City Council (or those following its lead) would fire an employee without notice of reasons or opportunity to be heard in similar cases, so too must we assume that whistleblowers like respondent would be dealt with in similar retaliatory fashion if they offend the Mayor, his staff, and relevant agency heads, or if they offend those lower ranking officials who follow the example of their superiors. Furthermore, just as we hold a municipality liable for discharging an employee without due process when its city council acts formally—for a due process violation is precisely the type of constitutional tort that a city council might commit when it acts formally—so too must we hold a municipality liable for discharging an employee in retaliation against his public speech 174 OCTOBER TERM, 1987 Stevens, J., dissenting 485 U. S. when similarly high officials act informally—for a First Amendment retaliation tort is precisely the type of constitutional tort that high officials might commit when they act in concert and informally. Whatever difficulties the Court may have with binding municipalities on the basis of the unconstitutional conduct of individuals, it should have no such difficulties binding a city when many of its high officials—including officials directly under the Mayor, agency heads, and possibly the Mayor himself—cooperate to retaliate against a whistleblower for the exercise of his First Amendment rights.23 I would affirm the judgment of the Court of Appeals. 23 The plurality incorrectly claims that I have suggested “a new theory” for determining when a municipality should be bound by the acts of its agents. Ante, at 125, n. 2. As both the plurality and the concurrence recognize, a municipality, like any institution, can only act through the agency of human beings. By holding that isolated actions of high officials may give rise to municipal liability, see, e. g., Owen v. City of Independence; Pembaur v. Cincinnati, the Court has indicated that the mere status of city officials matters in determining whether the city may be held liable for the officials’ actions. The argument of both the plurality and the concurrence that this principle should be applied only in the particular area of government that the erring official controls is unpersuasive, given the multifarious ways in which governmental agents may inflict constitutional harm. This case is a perfect example of why the “area-by-area” approach will not do; personnel actions may be taken in response to an employee’s protected speech by a number of high officials, none of whom possesses specific authority over “personnel” policy. Nevertheless, simply by virtue of their high rank, their actions may influence the actions of other municipal officials. It is that kind of influence that provides the common thread binding Monell and the later § 1983 municipal liability cases. In short, what the Court has characterized as “a new theory” is actually a way of understanding our precedents that will permit a judge to explain to a jury that “policy” means nothing if not “influence,” and that while the isolated gunshot of an errant police officer would not influence his colleagues, see Oklahoma City v. Tuttle, adverse personnel actions taken by a city’s highest officials in response to an employee’s Civil Service Commission appeals and his public testimony would set an example for other, lower officials to follow. TRANS WORLD AIRLINES, INC. v. FLIGHT ATTENDANTS 175 Per Curiam TRANS WORLD AIRLINES, INC. v. INDEPENDENT FEDERATION OF FLIGHT ATTENDANTS CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 86-1650. Argued January 12, 1988—Decided March 2, 1988 809 F. 2d 483, affirmed by an equally divided Court. Murray Gartner argued the cause for petitioner. With him on the briefs were Paul E. Donnelly, Mark A. Buck-stein, and Michael A. Katz. Steven A. Fehr argued the cause for respondent. With him on the brief were William A. Jolley, Doyle R. Pryor, and Scott A. Raisher. * Per Curiam. The judgment of the Court of Appeals for the Eighth Circuit is affirmed by an equally divided Court. Justice Kennedy took no part in the consideration or decision of this case. *Briefs of amici curiae urging reversal were filed for the Crossover Flight Attendants by Mark P. Johnson; and for Some Working TWA Flight Attendants by Robert F. Gore, Rossie D. Alston, Jr., and Rex H. Reed. Marsha Berzon, William Mahoney, John Clarke, Jr., and Laurence Gold filed a brief for the American Federation of Labor and Congress of Industrial Organizations et al. as amici curiae urging affirmance. 176 OCTOBER TERM, 1987 Syllabus 485 U. S. K MART CORP. v. CARTIER, INC., et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 86-495. Argued October 6, 1987—Decided March 7, 1988* A “gray-market” good is a foreign-manufactured good that bears a valid United States trademark and is imported without the consent of the United States trademark owner. Section 526(a) of the Tariff Act of 1930 prohibits the importation of certain gray-market goods. The Customs Service’s implementing regulation allows importation where the foreign manufacturer is affiliated with the United States trademark owner or has received the owner’s authorization to use its trademark. Respondent Coalition to Preserve the Integrity of American Trademarks and two of its members filed a Federal District Court suit against the Government for injunctive and declaratory relief, asserting, inter alia, that the regulation is inconsistent with § 526(a) and is therefore invalid. Petitioner 47th Street Photo, Inc., intervened as a defendant and filed a motion to dismiss on the ground that the Court of International Trade had exclusive jurisdiction over the case. The District Court rejected the motion and upheld the regulation. The Court of Appeals affirmed the jurisdictional ruling, but reversed on the merits. Held: 1. The District Court had jurisdiction under both the general federal-question provision, 28 U. S. C. § 1331, and the specific provision regarding actions “arising under any Act of Congress relating to . . . trademarks.” § 1338(a). P. 182. 2. The Court of International Trade did not have exclusive jurisdiction under 28 U. S. C. § 1581(i)(3), which grants such jurisdiction over certain suits involving “embargoes or other quantitative restrictions on the importation of merchandise for reasons other than the protection of the public health or safety.” Pp. 182-190. (a) Although the Court of Appeals properly rejected the theory that § 526(a) imposes an “embarg[o]” within the meaning of § 1581(i)(3), the court’s reasoning—that § 1581(i)(3) only extends to embargoes arising *Together with No. 86-624, ^7th Street Photo, Inc. v. Coalition to Preserve the Integrity of American Trademarks et al., and No. 86-625, United States et al. v. Coalition to Preserve the Integrity of American Trademarks et al., also on certiorari to the same court. K MART CORP. v. CARTIER, INC. 177 176 Syllabus out of trade policy—is unpersuasive. Trade policy is not the sole, nor perhaps even the primary, purpose served by embargoes, which are also imposed, inter alia, to protect the public health, safety, or morality. Had Congress intended to constrain the meaning of “embargoes” as suggested by the Court of Appeals, it would have been unnecessary to exclude expressly health or safety embargoes from § 1581(i)(3)’s jurisdictional grant, or to deny the Court of International Trade jurisdiction over suits arising from the importation of prohibited “immoral articles,” see § 1581(j). P. 184. (b) The ordinary meaning of “embargo,” which Congress apparently adopted in § 1581(i)(3), is a governmentally imposed quantitative restriction—of zero—on the importation of merchandise. Section 526(a)’s importation prohibition is not such an “embargo,” since, rather than reflecting a governmental restriction on the quantity of a particular product that will enter, it merely provides a mechanism by which a trademark owner might, at its own option, enlist the Customs Service’s aid in barring foreign-made goods bearing its trademark in order to enforce its own private trademark right. The contention that “embargo” should be defined as any governmental “import regulation that takes the form of a prohibition, regardless of... its ultimate purpose,” is rejected, since, in fact, not every governmental import prohibition is an embargo. Pp. 185-187. (c) Section 1581(i)(3)’s purpose of eliminating jurisdictional confusion and its legislative history provide no indication that Congress intended to depart from the ordinary meaning of “embargoes.” If Congress had meant to give the Court of International Trade exclusive jurisdiction over “importation prohibitions” rather than “embargoes,” it would have said so. Pp. 187-190. 3. The Court of International Trade did not have exclusive jurisdiction under 28 U. S. C. § 1581(i)(4), which grants such jurisdiction over certain suits involving “administration and enforcement with respect to the matters referred to” in § 1581(a), which in turn applies to actions contesting the administrative “denial of a protest” challenging a Customs officer’s order excluding merchandise from entry. Since this action does not involve the “matte[r] referred to” in § 1581(a)—the “denial of a protest,” or at the very broadest, “a protest”—it cannot involve “administration and enforcement with respect to” that matter. Pp. 190-191. 4. The cases are restored to the calendar for reargument on the merits. P. 191. 252 U. S. App. D. C. 342, 790 F. 2d 903, affirmed in part. Brennan, J., delivered the opinion of the Court, in which White, Marshall, Blackmun, and Stevens, JJ., joined. Scalia, J., filed a dissent 178 OCTOBER TERM, 1987 Syllabus 485 U. S. ing opinion, in which Rehnquist, C. J., and O’Connor, J., joined, post, p. 191. Kennedy, J., took no part in the consideration or decision of the case. Deputy Solicitor General Cohen argued the cause for petitioners in No. 86-625. With him on the briefs were Solicitor General Fried, Assistant Attorney General Willard, Deputy Assistant Attorney General Spears, Jeffrey P. Minear, David M. Cohen, and Robert V. Zener. Robert W. Steele argued the cause for petitioners in Nos. 86-495 and 86-624. With him on the briefs for petitioner in No. 86-495 were Robert E. Hebda and James C. Tuttle. Nathan Lewin and Jamie S. Gorelick filed briefs for petitioner in No. 86-624. William H. Allen argued the cause for respondents. With him on the brief were Eugene A. Ludwig and Scott D. Gilbert A tBriefs of amici curiae urging reversal were filed for the State of Washington by Kenneth 0. Eikenberry, Attorney General, and John G. Hennen, Senior Assistant Attorney General; for the American Free Trade Association by Stephen Kurzman, Robert Ullman, and Steven R. Trost; for the Consumers Union of U. S., Inc., by Alan Mark Silbergeld; for Darby Dental Supply Co. et al. by Robert V. Marrow; for the National Association of Catalog Showroom Merchandisers by Richard B. Kelly and Thomas P. Mohen; for the National Mass Retailing Institute by William D. Coston and Robert J. Verdisco; and for Progress Trading Co. by William F. Sondericker, Robert L. Hoegle, and Frank W. Gaines, Jr. Briefs of amici curiae urging affirmance were filed for American Cyana-mid Co. et al. by David Ladd and Thomas W. Kirby; for the American Intellectual Property Law Association, Inc., by Neil A. Smith; for Duracell Inc. by James N. Bierman, Jay N. Varon, and Sheila McDonald Gill; for Lever Brothers Co. by Robert P. Devlin; for the Motor Vehicle Manufacturers Association of the United States, Inc., by William H. Crabtree; for the United States Trademark Association by Marie V. Driscoll; and for Yamaha International Corp, et al. by Robert E. Wagner and Robert E. Browne. Harold C. Wegner, Barry E. Bretschneider, Donald R. Dinan, Charles F. Schill, and Albert P. Halluin filed a brief for Cetus Corp, as amicus curiae. K MART CORP. v. CARTIER, INC. 179 176 Opinion of the Court Justice Brennan delivered the opinion of the Court. A “gray-market” good is a foreign-manufactured good bearing a valid United States trademark, which is imported without the consent of the United States trademark owner. This action presents the issues whether a federal district court has jurisdiction to hear a challenge to the Secretary of the Treasury’s regulation permitting the importation of certain graymarket goods, 19 CFR § 133.21 (1987), and, if so, whether the regulation is a reasonable agency interpretation of § 526(a) of the Tariff Act of 1930 (1930 Tariff Act), 46 Stat. 741, as amended, 19 U. S. C. § 1526. I Section 526(a) of the 1930 Tariff Act prohibits importing “into the United States any merchandise of foreign manufacture if such merchandise . . . bears a trademark owned by a citizen of, or by a corporation or association created or organized within, the United States, and registered in the Patent and Trademark Office by a person domiciled in the United States . . . , unless written consent of the owner of such trademark is produced at the time of making entry.” 19 U. S. C. § 1526(a).1 * !The full text of § 526(a), as modified, 19 U. S. C. § 1526(a), is as follows: “(a) Importation prohibited “Except as provided in subsection (d) of this section [an exception added in 1978 for the importation of articles for personal use], it shall be unlawful to import into the United States any merchandise of foreign manufacture if such merchandise, or the label, sign, print, package, wrapper, or receptacle, bears a trademark owned by a citizen of, or by a corporation or association created or organized within, the United States, and registered in the Patent and Trademark Office by a person domiciled in the United States, under the provisions of sections 81 to 109 of title 15, and if a copy of the certificate of registration of such trademark is filed with the Secretary of the Treasury, in the manner provided in section 106 of said title 15, unless written consent of the owner of such trademark is produced at the time of making entry.” 180 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. The Customs Service regulation that implements § 526(a) does not prohibit importation of gray-market goods where the foreign manufacturer is affiliated with the United States trademark owner or has received the owner’s authorization to use its trademark. The regulation provides generally that “[f]oreign-made articles bearing a trademark identical with one owned and recorded by a citizen of the United States or a corporation or association created or organized within the United States are subject to seizure and forfeiture as prohibited importations.” 19 CFR § 133.21(b) (1987).2 But the 2 The Customs Service regulation provides in relevant part: “§ 133.21 Restrictions on importations of articles bearing recorded trademarks and trade names. “(b) Identical trademark. Foreign-made articles bearing a trademark identical with one owned and recorded by a citizen of the United States or a corporation or association created or organized within the United States are subject to seizure and forfeiture as prohibited importations. “(c) Restrictions not applicable. The restrictions set forth in paragraphs (a) and (b) of this section do not apply to imported articles when: “(1) Both the foreign and the U. S. trademark or trade name are owned by the same person or business entity; “(2) The foreign and domestic trademark or trade name owners are parent and subsidiary companies or are otherwise subject to common ownership or control (see §§ 133.2(d) [defining “common ownership and common control”] and 133.12(d) [providing that application to record trademark must report identity of any affiliate that uses same trade name abroad]); “(3) The articles of foreign manufacture bear a recorded trademark or trade name applied under authorization of the U. S. owner; “(4) The objectionable mark is removed or obliterated prior to importation in such a manner as to be illegible and incapable of being reconstituted, for example by: “(i) Grinding off imprinted trademarks wherever they appear; “(ii) Removing and disposing of plates bearing trademark or trade name; “(5) The merchandise is imported by the recordant of the trademark or trade name or his designate; “(6) The recordant gives written consent to an importation of articles otherwise subject to the restrictions set forth in paragraphs (a) and (b) of this section, and such consent is furnished to appropriate Customs officials; or K MART CORP. v. CARTIER, INC. 181 176 Opinion of the Court regulation furnishes a “common-control” exception from the ban, permitting the entry of gray-market goods manufactured abroad by the trademark owner or its affiliate: “(c) Restrictions not applicable. The restrictions . . . do not apply to imported articles when: “(1) Both the foreign and the U. S. trademark or trade name are owned by the same person or business entity; [or] “(2) The foreign and domestic trademark or trade name owners are parent and subsidiary companies or are otherwise subject to common ownership or control. . . The Customs Service regulation further provides an “authorized-use” exception, which permits importation of gray-market goods where “(3) [t]he articles of foreign manufacture bear a recorded trademark or trade name applied under authorization of the U. S. owner . . . 19 CFR § 133.21(c) (1987). Respondent Coalition to Preserve the Integrity of American Trademarks, an association of United States trademark owners, and two of its members (all three collectively referred to as COPIAT) brought suit in the United States District Court for the District of Columbia, seeking both a declaration that the Customs Service regulation is invalid and an injunction against its enforcement.* 3 Specifically, COPIAT asserted that the common-control and authorized-use exceptions are inconsistent with both § 526(a) of the 1930 Tariff Act, and §42 of the Lanham Trade-Mark Act, 15 U. S. C. § 1124, which prohibits the importation of goods bearing marks that “copy or simulate” United States trademarks. Petitioners “(7) The articles of foreign manufacture bear a recorded trademark and the personal exemption is claimed and allowed under § 148.55 of this chapter.” 19 CFR § 133.21 (1987). 3 COPIAT sued the United States, the Secretary of the Treasury, and the Commissioner of Customs. 182 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. K mart Corporation and 47th Street Photo, Inc., intervened as defendants. After rejecting 47th Street Photo’s motion to dismiss on the ground that the Court of International Trade had exclusive jurisdiction over the case, the District Court upheld the Customs Service regulation against both challenges. 598 F. Supp. 844 (1984). The Court of Appeals affirmed the District Court’s jurisdictional ruling but reversed on the merits. 252 U. S. App. D. C. 342, 790 F. 2d 903 (1986) (hereinafter COPIAT}. We granted certiorari, 479 U. S. 1005 (1986), to resolve conflicts among the Courts of Appeals on both the jurisdictional issue, compare Vivitar Corp. n. United States, 761 F. 2d 1552, 1557-1560 (CA Fed. 1985), aff’g 593 F. Supp. 420 (Ct. Int’l Trade 1984), cert, denied, 474 U. S. 1055 (1986), with Olympus Corp. v. United States, 792 F. 2d 315, 317-319 (CA2 1986), aff’g 627 F. Supp. 911 (EDNY 1985), cert, pending, No. 86-757; and COPIAT, supra, at 344-346, 790 F. 2d, at 905-907, and the merits, compare Vivitar Corp., supra, at 1560-1571, and Olympus Corp., supra, at 319-322, with COPIAT, supra, at 346-355, 790 F. 2d, at 907-916. We now affirm the Court of Appeals’ conclusion that the District Court had jurisdiction, and restore these cases to the calendar for reargument on the merits. II Only petitioner 47th Street Photo contends that we lack jurisdiction over this litigation. Both the general federal-question provision, 28 U. S. C. § 1331, and the specific provision regarding actions “arising under any Act of Congress relating to . . . trade-marks,” § 1338(a), would, standing alone, vest the district courts with jurisdiction over this action.4 The District Court would be divested of jurisdiction, however, if this action fell within one of several specific grants of 4 For the Lanham Trade-Mark Act claim, COPIAT also invoked a specific provision of that Act conferring to the district courts jurisdiction over all claims arising under the Act. 15 U. S. C. § 1121. K MART CORP. v. CARTIER, INC. 183 176 Opinion of the Court exclusive jurisdiction to the Court of International Trade. Petitioner propounds two theories in support of its claim that exclusive jurisdiction lies in the Court of International Trade. We reject both. A Petitioner’s first theory is that § 526(a) imposes an “em-barg[o]” within the meaning of 28 U. S. C. § 1581(i)(3), which grants the Court of International Trade exclusive jurisdiction over suits against the Government arising out of federal laws that provide for “embargoes or other quantitative restrictions on the importation of merchandise for reasons other than the protection of the public health or safety . . . .”5 The Court of Appeals rejected that theory on the ground that “Section 1581(i)(3) only extends to quotas and embargoes arising out of trade policy, the sort of measures that have traditionally limited the importation of shoes, textiles, automobiles, and the like.” COPIAT, supra, at 346, 790 F. 2d, at 907. We agree with the Court of Appeals that § 526(a) is not an “embargo,” but reach that conclusion on different reasoning. 5 As relevant here, 28 U. S. C. § 1581 provides: “(i) In addition to the jurisdiction conferred upon the Court of International Trade by subsections (a)-(h) of this section and subject to the exception set forth in subsection (j) of this section, the Court of International Trade shall have exclusive jurisdiction of any civil action commenced against the United States, its agencies, or its officers, that arises out of any law of the United States providing for— “(1) revenue from imports or tonnage; “(2) tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other than the raising of revenue; “(3) embargoes or other quantitative restrictions on the importation of merchandise for reasons other than the protection of the public health or safety; or “(4) administration and enforcement with respect to the matters referred to in paragraphs (l)-(3) of this subsection and subsections (a)-(h) of this section. “(j) The Court of International Trade shall not have jurisdiction of any civil action arising under section 305 of the Tariff Act of 1930.” 184 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. (1) An embargo is a “[government order prohibiting commercial trade with individuals or businesses of other nations.” Black’s Law Dictionary 468 (5th ed. 1979). It is “[a] policy which prevents goods from entering a nation” and which “may be imposed on a product or on an individual country.” J. Berenyi, The Modern American Business Dictionary 103 (1982). To be sure, embargoes, like those that the Court of Appeals enumerated, often implement trade policy. But (even assuming that the exclusion of foreign-manufactured goods bearing United States trademarks cannot fairly be said to implement trade policy) trade policy is not the sole, nor perhaps even the primary, purpose served by embargoes. The Government typically imposes embargoes to protect public health, see, e. g., 21 U. S. C. §381 (adulterated, misbranded, or unapproved foods, drugs, and cosmetics); safety, see, e. g., 15 U. S. C. § 1397 (motor vehicles that do not conform to federal safety standards); or morality, see, e. g., 19 U. S. C. § 1305 (obscene pictures, lottery tickets, and articles for causing unlawful abortion), or to further interests relating to foreign affairs, see, e. g., 22 U. S. C. § 2370(a) (embargo on Cuba); law enforcement, see, e. g., 15 U. S. C. §§1241— 1244 (switchblade knives); or ecology, see, e. g., 19 CFR § 12.60 (1987) (fur-seal or sea-otter skins). We have discovered no evidence that Congress intended to constrain the ordinary meaning of the word “embargoes” to mean “embargoes that are grounded in trade policy.” To the contrary, had Congress so intended, it would have been quite unnecessary to exclude expressly from the Court of International Trade’s jurisdiction, as Congress did, embargoes that are for the “protection of the public health or safety,” 28 U. S. C. § 1581(i)(3), or that prohibit the importation of certain “immoral articles,” see § 1581(j) (excluding suits arising out of 19 U. S. C. § 1305, which prohibits importation of a panoply of “immoral articles”). K MART CORP. v. CARTIER, INC. 185 176 Opinion of the Court (2) Although we reject the Court of Appeals’ analysis, we nevertheless agree with its conclusion that § 526(a) does not impose an embargo. As the above-quoted definitions suggest, the ordinary meaning of “embargo,” and the meaning that Congress apparently adopted in the statutory language “embargoes or other quantitative restrictions,” is a governmentally imposed quantitative restriction—of zero—on the importation of merchandise. An importation prohibition is not an embargo if rather than reflecting a governmental restriction on the quantity of a particular product that will enter, it merely provides a mechanism by which a private party might, at its own option, enlist the Government’s aid in restricting the quantity of imports in order to enforce a private right. Suppose, for example, that a domestic producer grants a foreign distributor exclusive distribution rights abroad, and that a provision of the contract, captioned “Importation prohibited,” bars the foreign distributor from competing for domestic sales. If the foreign distributor nevertheless brazenly imports into the United States, the domestic manufacturer may invoke any of a number of contract remedies—including monetary or injunctive relief in court—to enforce its private right. A court-issued injunction is, technically, a “[g]ovemment order prohibiting commercial trade.” Yet one could no more deem the private party’s enforcement of its “Importation prohibition” an “embargo” than deem damages for its breach a “tarif[f], dut[y], fe[e] or other ta[x] on the importation of merchandise,” 28 U. S. C. § 1581(i)(2). The private party, not the Government, by deciding whether and how to exercise its private right, determines the quantity of any particular product that can be imported. Section 526(a)’s “Importation prohibition” is of the same type. Trademark law, like contract law, confers private rights, which are themselves rights of exclusion. It grants the 186 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. trademark owner a bundle of such rights, one of which is the right to enlist the Customs Service’s aid to bar foreign-made goods bearing that trademark. See 71 Cong. Rec. 3871 (1929) (remarks of Sen. George) (§ 526(a) “undoubtedly had its origin not in an effort to exclude merchandise bearing a trade-mark, but for the purpose of protecting the interest of the owner of the trade-mark who had gone to the trouble of registering it”); 62 Cong. Rec. 11603 (1922) (remarks of Sen. Sutherland) (§ 526(a) is designed to “protec[t] the property rights of American citizens who have purchased trade-marks from foreigners”). Thus, § 526(a)—like the court-issued injunction enforcing a contractual “Importation prohibition”— is very different from an embargo. It does not set a governmentally determined quantitative limit on the entry of, or foreign trafficking in, any particular product: The owner of the trademark can import to its heart’s content, and will usually do so until the market is content; and any other importer may also import a particular foreign-manufactured trade-marked good ad infinitum, if it acquires the trademark owner’s consent to import. Nor does the Government have any control over the extent or the nature of § 526(a)’s prohibition. The trademark owner has sole authority to decide that all products bearing its trademark will enter or that none will, and to decide what entity may import them, under what conditions, and for what purpose. There is no reason to suppose that Congress would have intended to distort the term “embargo” beyond its ordinary meaning to encompass a provision that merely grants particular trademark owners a private property right—whose enforcement is entirely in the owners’, not the Government’s, control—to exclude intrabrand competition from abroad.6 6 Section 526(a) is an unusual (if not a unique) breed of importation prohibition in that it takes all control out of the Government’s hands and puts it in the hands of private parties. The only other importation prohibitions mentioned by the parties or Justice Scalia that might even conceivably match that description are the prohibitions against the importation of K MART CORP. v. CARTIER, INC. 187 176 Opinion of the Court Justice Scalia’s conclusion that § 526(a) falls within the “ordinary meaning” of “embargo,” post, at 196, follows from a rather extraordinary definition of the term as any governmental “import regulation that takes the/orm of a governmental prohibition on imports, regardless of. . . its ultimate purpose,” post, at 195 (emphasis added). As the court-enforced contractual prohibition illustrates, not every governmental importation prohibition is an embargo. To hold otherwise would yield applications of the term “embargo” that are unnatural, to say the least. For example, the prohibitory nature of regulations providing that the “importation into the United States of milk and cream is prohibited” except by a permitholder, 19 CFR § 12.7(a) (1987) (emphasis added), and that “Customs officers shall not permit the importation of any milk or cream that is not tagged in accordance with [applicable] regulations,” § 12.7(b) (emphasis added), would convert licensing and tagging requirements into embargoes on unlicensed or improperly tagged dairy products. Similarly, a requirement that certain meat products be inspected prior to importation would magically become an embargo of uninspected (but not necessarily tainted) meat when Congress uses a formulation like “meat. . . products shall not be released from Customs custody prior to inspection,” § 12.8 (emphasis added). This sampling of import regulations demonstrates that Justice Scalia’s departure from ordinary meaning, much more than our adherence to it, would “leave [§ 526(a)] to drift on the currents of lawyerly invention,” post, at 196. (3) Contrary to petitioner’s contentions, our adherence to the ordinary meaning of “embargo” is not at all inconsistent with the purposes of the Customs Courts Act of 1980, Pub. L. 96-417, 94 Stat. 1727, which enacted the jurisdictional provi goods that infringe trademarks, see 15 U. S. C. § 1124, or copyrights, see 17 U. S. C. §§ 601-603. 188 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. sion. Congress intended, first and foremost, to remedy the confusion over the division of jurisdiction between the Customs Court (now the Court of International Trade) and the district courts and to “ensure . . . uniformity in the judicial decisionmaking process.” See H. R. Rep. No. 96-1235, p. 20 (1980). But Congress did not commit’to the Court of International Trade’s exclusive jurisdiction every suit against the Government challenging customs-related laws and regulations. Had Congress wished to do so it could have expressed such an intent much more clearly and simply by, for example, conveying to the specialized court “exclusive jurisdiction . . . over all civil actions against the [Government] directly affecting imports,” S. 2857, 95th Cong., 2d Sess. (1978), or over “all civil actions against the [Government] which arise directly from import transactions and which arise under the Tariff Act of 1930 [or any one of several specified trade statutes],” S. 1654, 96th Cong., 1st Sess. (1979); see also H. R. 6394, 96th Cong., 2d Sess. (1980). In rejecting bills that would have implemented such a categorical approach, Congress opted for a scheme that achieved the desired goals of uniformity and clarity by delineating precisely the particular customs-related matters over which the Court of International Trade would have exclusive jurisdiction. Thus, for example, Congress granted the Court of International Trade exclusive jurisdiction over suits relating to “tariffs, duties, fees, or other taxes on the importation of merchandise,” but not if they are for the “raising of revenue.” 28 U. S. C. § 1581(i)(2). Similarly, Congress made no provision for direct review in the Court of International Trade of facial challenges to conditions of entry, such as labeling or marking requirements, see, e. g., 19 CFR §§11.6-11.7 (1987) (packaging and marking of distilled spirits, wines, and malt liquors); §§ 11.12-11.12b (labeling of wool, fur, and textile products), and inspection, see, e. g., §11.1 (inspection of cigars, cigarettes, medicinal preparations, and perfumery); § 12.8 (inspection of meats). Or, to focus more closely on the K MART CORP. v. CARTIER, INC. 189 176 Opinion of the Court genre of trade regulation at issue here, no one disputes that Congress declined to grant the Court of International Trade exclusive jurisdiction over import prohibitions relating to “public health and safety” or “immoral articles.” See supra, at 184. By choosing the word “embargoes” over the phrase “importation prohibitions,” Congress likewise declined to grant the Court of International Trade exclusive jurisdiction over importation prohibitions that are not embargoes. To depart from the words Congress chose would infect the courts with the same jurisdictional confusion that Congress intended to cure. Concededly, Congress did not fully explain its exclusion of certain customs-related matters from the Court of International Trade’s jurisdiction. There is, for example, no obvious reason why Congress declined to grant that court jurisdiction to review challenges to conditions of importation of the type mentioned above. There may likewise be no adequate explanation for Congress’ omission of importation prohibitions that do not fall within the ordinary meaning of “embargoes.” Whatever the reason, however, we disagree with petitioner that the omission is inconsistent with Congress’ intent to “utiliz[e] the specialized expertise of the United States Customs Court and the United States Court of Customs and Patent Appeals . . . .” H. R. Rep. No. 96-1235, supra, at 20. The Customs Court, which the Customs Court Act of 1980 renamed the Court of International Trade, and the Court of Customs and Patent Appeals, which the Federal Courts Improvement Act of 1982 merged with the Court of Claims to form the United States Court of Appeals for the Federal Circuit, had rarely dealt with, much less developed a “specialized expertise” in, trademark law. Nor is there any indication (aside from petitioner’s strained reading of the term “embargo”) that Congress wished the new institutions to acquire expertise in the area in which its predecessors had none. 190 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. In sum, the purpose and legislative history of the jurisdictional provision provide no hint that Congress intended to depart from the ordinary meaning of “embargoes.” B Petitioner’s second theory for vesting exclusive jurisdiction in the Court of International Trade is more easily rejected. It begins with 28 U. S. C. § 1581(a), which grants “[t]he Court of International Trade . . . exclusive jurisdiction of any civil action commenced to contest the denial of a protest, in whole or in part, under section 515 of the Tariff Act of 1930.” The “protest” referred to in subsection (a) is an administrative remedy available to challenge specified decisions by Customs officers, including a decision ordering “the exclusion of merchandise from entry . . . under any provision of the customs laws.” 19 U. S. C. § 1514(a)(4) (emphasis added). Petitioner acknowledges that the present action is not a protest because it challenges a Customs Service decision to permit the entry of, not to exclude, gray-market goods. It asserts instead that since this suit involves subject matter that would have given rise to a protest had graymarket goods been excluded rather than admitted, the Court of International Trade had exclusive jurisdiction “ ‘as a corollary to protest jurisdiction under 28 U. S. C. § 1581(a).’” Brief for Petitioner 47th Street Photo, Inc. 17 (quoting Vivi-tar, 761 F. 2d, at 1560). The source of that putative corollary is 28 U. S. C. § 1581(i)(4), which confers on the Court of International Trade jurisdiction over suits against the Government arising out of federal laws pertaining to “administration and enforcement with respect to the matters referred to in [, inter alia,] subsectio[n] (a).” We agree with the Court of Appeals that § 1581(i)(4) will not bear petitioner’s reading. See also Olympus Corp., 792 F. 2d, at 317-319. The “matte[r] referred to” in § 1581(a) is “the denial of [a] protes[t],” or at the very broadest, “a protest.” Since this suit involves no “protest,” much less a de- K MART CORP. v. CARTIER, INC. 191 176 ’ Scalia, J., dissenting nial of one, it cannot by any stretch of the imagination involve a “law . . . providing for . . . administration and enforcement” of a protest. Id., at 318. Ill We affirm the Court of Appeals’ conclusion that the District Court had jurisdiction, and restore these cases to the calendar for reargument on the merits. It is so ordered. Justice Kennedy took no part in the consideration or decision of this case. Justice Scalia, with whom The Chief Justice and Justice O’Connor join, dissenting. In a Court that selects its docketed cases on the basis of the general importance of the issues they present, jurisdictional questions tend to get short shrift. The central issue in this suit, the so-called “gray-market” issue, which may have immediate and substantial effects on the national economy, has provoked no less than 15 amici briefs; while the jurisdictional question, which could have the undesirable consequence of preventing our immediate resolution of the merits, has been briefed in only 11 pages by petitioners and 6 pages by respondents. Understandably enough, no one, myself included, is eager to conclude that we are powerless to resolve the issue that is this suit’s claim to national attention. Even so, we must carefully review any question that asks us to determine the limits of a federal court’s power, particularly when, as in this suit, two different sets of courts have concluded that they have exclusive jurisdiction over the subject of the suit. Compare Vivitar Corp. v. United States, 761 F. 2d 1552, 1557-1560 (CA Fed. 1985), cert, denied, 474 U. S. 1055 (1986); with cases below, 252 U. S. App. D. C. 342, 344-346, 790 F. 2d 903, 905-907 (1986); and Olympus Corp. v. United States, 792 F. 2d 315, 317-319 (CA2 1986). Moreover, while the gray-market question is of greater im 192 OCTOBER TERM, 1987 Scalia, J., dissenting 485 U. S. mediate economic importance (though we would soon enough have another occasion to address it), the jurisdictional question, if decided incorrectly, may generate uncertainty and hence litigation into the indefinite future. In my view, the Court’s resolution of this question strains the plain language of the statute, and blurs a clear jurisdictional line that Congress has established. The Court of International Trade’s exclusive jurisdiction extends to any civil action against the United States, its agencies or officers, “that arises out of any law of the United States providing for . . . embargoes or other quantitative restrictions on the importation of merchandise for reasons other than the protection of the public health or safety.” 28 U. S. C. § 1581(i)(3). The statute does not define “embargo,” and there is no reason to give it anything other than its ordinary meaning. An embargo is “a prohibition imposed by law upon commerce either in general or in one or more of its branches,” Webster’s Third New International Dictionary 738 (1981), a “[glovernment order prohibiting commercial trade with individuals or businesses of other nations,” Black’s Law Dictionary 468 (5th ed. 1979), an “[a]uthoritative stoppage of foreign commerce or of any special trade,” Funk & Wagnails New International Dictionary of the English Language 411 (1984). The present lawsuit challenges a Customs Service regulation, 19 CFR § 133.21(c) (1987), that implements § 526(a) of the Tariff Act of 1930, 19 U. S. C. § 1526(a). That statutory provision, which begins with the caption “(a) Importation prohibited,” excludes from the United States foreign-made merchandise bearing a trademark owned and recorded by a United States citizen or corporation. Section 526(a) is, to borrow language from the Senate debate, “an embargo against any foreign country shipping goods here where an American claims he has a trade-mark upon them.” 62 Cong. Rec. 11603 (1922) (remarks of Sen. Kellogg) (emphasis added). Because this suit against the United States arises out of a law provid- K MART CORP. v. CARTIER, INC. 193 176 Scalia, J., dissenting ing for an embargo, I would hold that it is within the exclusive jurisdiction of the Court of International Trade. The Court acknowledges that the term “embargo” means a “governmentally imposed” import prohibition, ante, at 185, but it seems to me that its analysis departs from that truth. Surely § 526(a) prohibits imports, and that prohibition, enacted by Congress and enforced by an executive agency, is surely governmentally imposed. One might argue that the privately invocable exception to § 526(a) causes it not to be an absolute governmental prohibition, and that only absolute governmental prohibitions qualify as embargoes. The Court rightly avoids that line of analysis, however, since many of the provisions commonly regarded as embargoes contain privately invocable exceptions, such as exemptions for certain privately determined uses. See, e. g., 19 U. S. C. A. § 1202, p. 265, Schedule 1, Part 4, Subpart E; 19 CFR §§ 12.80(b)(v), (vi) (1987). But if, despite its privately invocable exception, § 526(a) meets the requirement of being a prohibition, it unquestionably meets the requirement of being a governmentally imposed one. Here, as with other embargoes, the availability of a privately invocable exception affects the extent of the prohibition; but the residual prohibition, whatever its extent, is governmental. The Court seeks to set § 526(a) apart from other embargoes with privately invocable exceptions by observing that “rather than reflecting a governmental restriction on the quantity of a particular product that will enter, it merely provides a mechanism by which a private party might, at its own option, enlist the Government’s aid in restricting the quantity of imports in order to enforce a private right.” Ante, at 185. Perhaps it is meant to provide such a mechanism, but that relates not to whether it is a governmental prohibition, but to what the purpose of the governmental prohibition happens to be. It is no more in accord with common usage to say that a provision cannot be an embargo if its purpose is to protect private rights than to say (as did the Court of Appeals in the 194 OCTOBER TERM, 1987 Scalia, J., dissenting 485 U. S. analysis that the Court readily rejects, ibid., that it cannot be an embargo if its purpose is something other than trade policy. Embargoes are imposed for many different purposes, including sometimes the protection of private rights. Assuredly those which have the latter purpose are different from those that do not, but it is beyond me why that purpose, any more than any other one, would cause them not to be governmentally imposed import prohibitions. In my view, for example, the prohibition on the importation of art stolen from a private nonprofit museum, see 19 CFR §§ 12.104-12.104h (1987), is unquestionably an embargo. Moreover, since the lever that the Court is using for its analysis is the prohibition’s asserted lack of “governmental” character, it should make no difference whether the objective of the prohibition is to protect a private “right,” or to protect some other private interest, or the interest of some nonprivate entity other than the Government itself. Thus, on the Court’s analysis there would be excluded from the term “embargo” the prohibition on importing pre-Columbian sculptures or murals, which does not apply if the importer produces a certificate issued by the country of origin stating that the goods were not unlawfully exported. 19 U. S. C. §2092; 19 CFR § 12.107 (1987). This is simply not in accord with normal understanding. The Court seeks to establish the inherently “nonembargo” character of a prohibition protecting private property rights by noting that a court injunction enforcing a contractual import prohibition is not an embargo. Ante, at 185. I agree that an injunction is not an embargo, but that conclusion does not follow from the fact that the injunction issued at the instance of a private individual to protect property rights. A court injunction issued at the instance of a Government agency, to prevent importation that was part of a conspiracy in violation of the Sherman Act, would likewise not generally be thought of as an embargo—because the word is normally applied only to prohibitions imposed by the Legislative or Executive Branches of Government. K MART CORP. v. CARTIER, INC. 195 176 . Scalia, J., dissenting The short of the matter is that an “embargo” is an import regulation that takes the form of a governmental prohibition on imports, regardless of any exceptions it may contain and regardless of its ultimate purpose—just as quotas, tariffs, and conditions on importation are identifiable forms of import regulation regardless of their exceptions and purposes. The Court points out, ante, at 187, that it may sometimes be difficult to distinguish a condition on importation from a prohibition on importation containing exceptions. That may be true, but since we are agreed that only prohibitions and not conditions come within the meaning of embargo, that ambiguity will have to be grappled with under the Court’s view of things no less than under mine. It is irrelevant to the present issue, unless the existence of one ambiguity within a statute justifies the needless creation of another. Under my analysis, when a provision has been identified as an import prohibition (however difficult that may be—and it is neither difficult nor contested here) that is an end of the matter. Under the Court’s analysis, one must proceed further to examine the exceptions to the prohibition and its purpose. Today’s decision leaves some doubt as to what prohibitions on importation other than § 526(a) are not governmental, and hence not embargoes, because they benefit private parties and are avoidable by private consent. Even if the Court’s holding can be limited to prohibitions that protect private “rights,” then at least the status of the prohibitions on the importation of goods that infringe trademarks or copyrights is called into question. See 15 U. S. C. § 1124; 17 U. S. C. §§ 601-603. And since, as noted earlier, the purpose of protecting private “rights” (whatever that might mean) is logically no more invalidating than the purpose of protecting private “interests,” or even, more broadly, nongovernmental interests, the status of other import prohibitions is cast in doubt as well. These uncertainties arise from today’s particular departure from the meaning of “embargo” as “a governmental prohi- 196 OCTOBER TERM, 1987 Scalia, J., dissenting 485 U. S. bition on importation.” Much greater, unfortunately, are the uncertainties that arise from today’s acknowledgment of the principle that departure is permissible. Having cast § 526(a) loose from the moorings of its language, we leave it to drift on the currents of lawyerly invention. It remains to be seen what other limitations on the ordinary meaning of “embargo,” no more apparent to the naked mind than the present one, may exist. NORWEST BANK WORTHINGTON v. AHLERS 197 Syllabus NORWEST BANK WORTHINGTON et al. v. AHLERS et ux. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 86-958. Argued January 12, 1988—Decided March 7, 1988 Respondents, who operate a family farm, obtained secured loans from petitioners. Following a 1984 default on the loan payments, one petitioner filed a state-court replevin action seeking possession of the farm equipment pledged as security, but respondents obtained an automatic stay of the action when they filed a petition for reorganization under Chapter 11 of the Bankruptcy Code (Code). On petitioners’ motions for relief from the automatic stay, the District Court found respondents’ reorganization plan to be unfeasible and affirmed the Bankruptcy Court’s decision to grant petitioners relief. The Court of Appeals reversed, finding that respondents could file a feasible reorganization plan (as suggested by the court), and rejecting petitioners’ contention that the Code’s “absolute priority rule,” 11 U. S. C. § 1129(b)(2)(B)(ii) (1982 ed. and Supp. IV)-which provides that a dissenting class of unsecured creditors must be provided for in full before any junior class can receive or retain any property under the plan—barred confirmation of any plan which allowed respondents to retain their equity interest in the farm, which was junior to creditors’ unsecured claims. The court held that under Case v. Los Angeles Lumber Products Co., 308 U. S. 106, the absolute priority rule did not bar respondents from retaining their equity interest if they contributed “money or money’s worth” to the reorganized enterprise, and that their yearly contributions of “labor, experience, and expertise” would constitute such a contribution, therefore permitting confirmation of a reorganization plan over petitioners’ objections. Held: The absolute priority rule applies, and respondents’ promise of future labor warrants no exception to its operation. Pp. 202-211. (a) The dicta in Case v. Los Angeles Lumber Products Co., relied upon by the Court of Appeals, is not applicable here. Viewed from the time of the plan’s approval, respondents’ promise of future services was intangible, inalienable, and, in all likelihood, unenforceable. Unlike “money or money’s worth,” such promise cannot be exchanged in any market for something of value to the creditors today. No broader exception to the absolute priority rule than that suggested in Los Angeles Lumbers dicta exists. The statutory language and § 1129(b)’s legislative history bar any expansion of any exception to the absolute priority 198 OCTOBER TERM, 1987 Syllabus 485 U. S. rule beyond that recognized in this Court’s eases at the time Congress enacted the 1978 Bankruptcy Code. Pp. 202-206. (b) The provisions of the Code do not support the contentions that the equitable nature of bankruptcy proceedings prevents petitioners from voting in the class of unsecured creditors, and requires confirmation of a “fair and equitable” reorganization plan in the best interests of all creditors and debtors; and that respondents’ wholly unsecured creditors (as opposed to petitioners, who have undersecured claims) would fare better under the proposed reorganization plan than if the farm was liquidated. Whatever equitable powers remain in the bankruptcy courts must be exercised within the Code’s confines. Pp. 206-207. (c) There is no merit to respondents’ argument that the absolute priority rule does not apply on the ground that, because the farm has no “going concern” value (apart from their own labor on it), any equity interest they retain in a reorganization is worthless to the senior unsecured creditors and therefore is not “property” under the rule. Even where debts far exceed the current value of assets, a debtor who retains his equity interest in the enterprise retains “property.” The legislative history suggests that Congress’ meaning of “property” was broad, including both tangible and intangible property. The interest respondents would retain under any reorganization must be considered “property,” and therefore can only be retained pursuant to a plan accepted by their creditors or formulated in compliance with the absolute priority rule. Pp. 207-209. (d) Relief from current problems facing farm families cannot come from a misconstruction of the bankruptcy laws, but rather only from action by Congress. Moreover, the Family Farmers Bankruptcy Act of 1986 creates a new Chapter 12 bankruptcy proceeding whereby family farmers can retain an equity interest in their farms while making loan repayments under a reorganization plan. To uphold the Court of Appeals’ decision would create a method of proceeding under Chapter 11 which would be far more advantageous to farmers than is Chapter 12; this would be contrary to Congress’ intent. Pp. 209-211. 794 F. 2d 388, reversed and remanded. White, J., delivered the opinion of the Court, in which all other Members joined, except Kennedy, J., who took no part in the consideration or decision of the case. Gordon B. Conn, Jr., argued the cause for petitioners. With him on the brief were Michael R. Stewart, Dennis M. Ryan, A. Patrick Leighton, and David A. Kastelic. NORWEST BANK WORTHINGTON v. AHLERS 199 197 Opinion of the Court William L. Needier argued the cause for respondents. With him on the brief were James C. Truax and Francis E. Stepnowski.* Justice White delivered the opinion of the Court. In this case, the Court of Appeals found that respondents’ promise of future “labor, experience, and expertise” permitted confirmation of their Chapter 11 reorganization plan over the objections of their creditors, even though the plan violated the “absolute priority rule” of the Bankruptcy Code. Because we find this conclusion at odds with the Code and our cases, we reverse. I Respondents operate a failing family farm in Nobles County, Minnesota. Between 1965 and 1984 they obtained loans from petitioners, securing the loans with their farmland, machinery, crops, livestock, and farm proceeds. In November 1984, respondents defaulted on their loan payments to petitioner Norwest Bank Worthington; at the time, *Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Fried, Assistant Attorney General Willard, Deputy Solicitor General Cohen, and Roy T. Englert, Jr.; for the American Bankers Association by John J. Gill III and Michael F. Crotty; for the American College of Real Estate Lawyers by Robert M. Zinman, Bruce S. Lane, Edward I. Cutler, and David A. Richards; for the American Council of Life Insurance by Phillip E. Stano, Jack H. Blaine, Robert M. Zinman, and Edward J. Zimmerman; and for the Nebraska Bankers Association, Inc., by William B. Brandt. A brief of amici curiae urging affirmance was filed for the State of Arkansas et al. by Phillip L. Kunkel and Raymond T. Nimmer, and by the Attorneys General for their respective States as follows: Steve Clark of Arkansas, Joseph I. Lieberman of Coniiecticut, Thomas J. Miller of Iowa, Neil F. Hartigan of Illinois, David L. Armstrong of Kentucky, Hubert H. Humphrey III of Minnesota, Mike Greely of Montana, Robert M. Spire of Nebraska, Robert Abrams of New York, Nicholas Spaeth of North Dakota, T. Travis Medlock of South Carolina, Roger Tellinghuisen of South Dakota, and Jim Mattox of Texas. 200 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. the aggregate loan balance owed the petitioners exceeded $1 million. Following the default, Norwest filed a replevin action in Minnesota state court seeking possession of the farm equipment respondents had pledged as security. However, two weeks later respondents obtained an automatic stay of the replevin proceedings, when they filed a petition for reorganization under Chapter 11 of the Bankruptcy Code. See 11 U. S. C. § 362(a) (1982 ed. and Supp. IV). Petitioners filed motions in the Bankruptcy Court for relief from the automatic stay. 11 U. S. C. §362(d) (1982 ed., Supp. IV). After decisions by the Bankruptcy and the District Courts, these motions were ultimately considered by the Court of Appeals, which prohibited petitioners from repossessing any equipment, pending a determination by the District Court of the probability of success of a reorganization plan to be filed by respondents. App. to Pet. for Cert. A-76—A-77. On remand, the District Court found respondents’ reorganization plan to be “utterly] unfeasibl[e].” Id., at A-86. It therefore affirmed the Bankruptcy Court’s initial decision to grant petitioners relief from the automatic stay. On appeal, the Court of Appeals reversed. It found that respondents could file a feasible reorganization plan. 794 F. 2d 388, 399 (CA8 1986). Consequently, the Court of Appeals remanded the case with instructions that the Bankruptcy Court entertain and confirm a reorganization plan which comported with an outline suggested in a lengthy appendix to the Eighth Circuit’s opinion. Id., at 408-414. In reaching this conclusion, the Court of Appeals rejected petitioners’ contention that, because of the “absolute priority rule” in the Bankruptcy Code, 11 U. S. C. § 1129(b)(2)(B)(ii) (1982 ed. and Supp. IV), their legitimate objections to any reorganization plan which allowed respondents to retain an interest in the farm property was sufficient to bar confirmation NORWEST BANK WORTHINGTON v. AHLERS 201 197 Opinion of the Court of such a plan.1 Petitioners contended that the absolute priority rule prohibited respondents from retaining their equity interest in the farm, which is junior to the creditors’ unsecured claims. But the Court of Appeals, relying on this Court’s decision in Case v. Los Angeles Lumber Products Co., 308 U. S. 106 (1939), held that the absolute priority rule did not bar respondents from retaining their equity interest in the farm if they contributed “money or money’s worth” to the reorganized enterprise. It further concluded that respondents’ “yearly contributions of labor, experience, and expertise” would constitute a contribution of “money or money’s worth,” and therefore would permit confirmation of a reorganization plan over petitioners’ objections. 794 F. 2d, at 402-403. Judge John Gibson, in dissent, criticized the majority’s application of the absolute priority rule and its read 1 In relevant part, 11 U. S. C. § 1129(b) (1982 ed. and Supp. IV) provides: “(1) . . . [T]he court. . . shall confirm the plan ... if the plan ... is fair and equitable .... “(2) . . . [T]he condition that a plan be fair and equitable . . . includes the following requirements: “(B) With respect to a class of unsecured claims — “(i) the plan provides that each holder of a claim of such class receive or retain on account of such claim property of a value, as of the effective date of the plan, equal to the allowed amount of such claim; or “(ii) the holder of any claim or interest that is junior to the claims of such class will not receive or retain under the plan on account of such junior claim or interest any property.” Petitioners contended, and the Court of Appeals agreed, that they must be treated as unsecured creditors for purpose of any reorganization plan because their claims were substantially undersecured. See 794 F. 2d 388, 399 (CA8 1986); 11 U. S. C. § 506(a). Petitioners further argued, and the Court of Appeals also agreed, that any reorganization plan for respondents could not comply with § 1129(b)(2)(B)(i), because respondents could not possibly provide petitioners with property equal to the allowed amount of their claims. See 794 F. 2d, at 401. Thus, the Court of Appeals concluded that respondents’ reorganization plan would have to comply with § 1129(b)(2)(B)(ii)—the codification of the absolute priority rule—in order to be confirmed. Ibid. 202 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. ing of Los Angeles Lumber as “unprecedented, illogical, and unfair.” 794 F. 2d, at 406. He concluded that the absolute priority rule barred respondents’ retention of an equity interest in the farm over petitioners’ legitimate objections. After the Eighth Circuit—sharply divided—denied rehearing en banc, id., at 414-415, petitioners sought review by this Court. We granted certiorari to consider the Court of Appeals’ application of the absolute priority rule, 483 U. S. 1004 (1987), and now reverse. II As the Court of Appeals stated, the absolute priority rule “provides that a dissenting class of unsecured creditors must be provided for in full before any junior class can receive or retain any property [under a reorganization] plan.” 794 F. 2d, at 401. The rule had its genesis in judicial construction of the undefined requirement of the early bankruptcy statute that reorganization plans be “fair and equitable.” See Northern Pacific R. Co. v. Boyd, 228 U. S. 482, 504-505 (1913); Louisville Trust Co. v. Louisville, N. A. & C. R. Co., 174 U. S. 674, 684 (1899). The rule has since gained express statutory force, and was incorporated into Chapter 11 of the Bankruptcy Code adopted in 1978. See 11 U. S. C. § 1129(b)(2)(B)(ii) (1982 ed., Supp. IV). Under current law, no Chapter 11 reorganization plan can be confirmed over the creditors’ legitimate objections (absent certain conditions not relevant here) if it fails to comply with the absolute priority rule. There is little doubt that a reorganization plan in which respondents retain an equity interest in the farm is contrary to the absolute priority rule.2 The Court of Appeals did not 2 Respondents do not contest this conclusion, but rather, argue (1) that their proposal to retain an equity interest in the farm and equipment is confirmable under an exception to the absolute priority rule, Brief for Respondents 21-25, and (2) that the rule does not (or should not) apply to their reorganization plan for various reasons, id., at 14-21. For rea- NORWEST BANK WORTHINGTON v. AHLERS 203 197 Opinion of the Court suggest otherwise in ruling for respondents, but found that such a plan could be confirmed over petitioners’ objections because of an “exception” or “modification” to the absolute priority rule recognized in this Court’s cases. The Court of Appeals relied on the following dicta in Case v. Los Angeles Lumber Products Co., supra, at 121-122: “It is, of course, clear that there are circumstances under which stockholders may participate in a plan of reorganization of an insolvent debtor. . . . “[W]e believe that to accord ‘the creditor of his full right of priority against the corporate assets’ where the debtor is insolvent, the stockholder’s participation must be based on a contribution in money or money’s worth, reasonably equivalent in view of all the circumstances to the participation of the stockholder.” The Court of Appeals found this language applicable to this case, concluding that respondents’ future contributions of “labor, experience, and expertise” in running the farm—because they have “value” and are “measurable”—are “money or money’s worth” within the meaning of Los Angeles Lumber. 794 F. 2d, at 402. We disagree.3 sons we discuss infra, at 204-206, and in Part III, we find these arguments unpersuasive. 8 The United States, as amicus curiae, urges us to reverse the Court of Appeals’ ruling and hold that codification of the absolute priority rule has eliminated any “exception” to that rule suggested by Los Angeles Lumber. See Brief for United States as Amicus Curiae 17-23. Relying on the statutory language and the legislative history, the United States argues that the 1978 Bankruptcy Code “dropped the infusion-of-new-capital exception to the absolute priority rule.” Id., at 22. We need not reach this question to resolve the instant dispute. As we discuss infra, at 204-206, we think it clear that even if the Los Angeles Lumber exception to the absolute priority rule has survived enactment of the Bankruptcy Code, this exception does not encompass respondents’ promise to contribute their “labor, experience, and expertise” to the reorganized enterprise. Thus, our decision today should not be taken as any comment on the continuing vitality of the Los Angeles Lumber exception—a question which 204 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. Los Angeles Lumber itself rejected an analogous proposition, finding that the promise of the existing shareholders to pledge their “financial standing and influence in the community” and their “continuity of management” to the reorganized enterprise was “[in]adequate consideration” that could not possibly be deemed “money’s worth.” 308 U. S., at 122. No doubt, the efforts promised by the Los Angeles Lumber equity holders—like those of respondents—had “value” and would have been of some benefit to any reorganized enterprise. But ultimately, as the Court said in Los Angeles Lumber, “[t]hey reflect merely vague hopes or possibilities.” Id., at 122-123. The same is true of respondents’ pledge of future labor and management skills. Viewed from the time of approval of the plan, respondents’ promise of future services is intangible, inalienable, and, in all likelihood, unenforceable. It “has no place in the asset column of the balance sheet of the new [entity].” Los Angeles Lumber, 308 U. S., at 122-123. Unlike “money or money’s worth,” a promise of future services cannot be exchanged in any market for something of value to the creditors today. In fact, no decision of this Court or any Court of Appeals, other than the decision below, has ever found a promise to contribute future labor, management, or expertise sufficient to qualify for the Los Angeles Lumber exception to the absolute priority rule.* 4 In short, there is no has divided the lower courts since passage of the Code in 1978. Compare, e. g., In re Sawmill Hydraulics, Inc., 72 B. R. 454, 456, and n. 1 (Bkrtcy. Ct. CD Ill. 1987), with, e. g., In re Pine Lake Village Apartment Co., 19 B. R. 819, 833 (Bkrtcy. Ct. SDNY 1982). Rather, we simply conclude that even if an “infusion-of-‘money-or-money’s-worth”’ exception to the absolute priority rule has survived the enactment of § 1129(b), respondents’ proposed contribution to the reorganization plan is inadequate to gain the benefit of this exception. 4“[P]revious attempts to qualify non-capital equity in the absolute priority context have been unanimously rejected.” Koger & Acconcia, In re Ahlers: Capitalizing on Sweat, 42 J. Mo. Bar 455, 458 (1986). See also 794 F. 2d, at 407 (Gibson, J., dissenting); In re Baugh, 73 B. R. 414, 418 NORWEST BANK WORTHINGTON v. AHLERS 205 197 Opinion of the Court way to distinguish between the promises respondents proffer here and those of the shareholders in Los Angeles Lumber; neither is an adequate contribution to escape the absolute priority rule. Respondents suggest that, even if their proposed contributions to the reorganized farm do not fit within the Los Angeles Lumber dicta, they do satisfy some broader exception to the absolute priority rule. Brief for Respondents 23-24. But no such broader exception exists. Even if Congress meant to retain the Los Angeles Lumber exception to the absolute priority rule when it codified the rule in Chapter 11—a proposition that can be debated, see n. 3, supra—it is clear that Congress had no intention to expand that exception any further. When considering adoption of the current Code, Congress received a proposal by the Bankruptcy Commission to modify the absolute priority rule to permit equity holders to participate in a reorganized enterprise based on their contribution of “continued management . . . essential to the business” or other participation beyond “money or money’s worth.” See H. R. Doc. No. 93-137, pt. 1, pp. 258-259 (1973). This proposal—quite similar to the Court of Appeals’ holding in this case—prompted adverse reactions from numerous sources.5 Congress ultimately rejected the proposed liberalization of (Bkrtcy. Ct. ED Ark. 1987); In re Pecht, 57 B. R. 137, 139-141 (Bkrtcy. Ct. ED Va. 1986). In support of their position, respondents rely extensively on SEC v. United States Realty & Improvement Co., 310 U. S. 434 (1940). See Tr. of Oral Arg. 31-33, 35-37. However, the relevant portion of that case concerned a chapter of the old bankruptcy statutes under which the absolute priority rule did not apply. See SEC v. United States Realty & Improvement Co., supra, at 453-454. Thus, that case is wholly inapposite here. 5 See, e. g., Hearings on S. 235 and S. 236 before the Subcommittee on Improvements in Judicial Machinery of the Senate Committee on the Judiciary, 94th Cong., 1st Sess., pt. 2, p. 1044 (1975) (statement of Prof. Vernon Countryman); id., at 710 (statement of Phillip A. Loomis, Jr., Comm’r of the Securities and Exchange Comm’n); Brudney, The Bankruptcy Commission’s Proposed “Modifications” of the Absolute Priority Rule, 48 Am. Bankr. L. J. 305, 336-339 (1974). 206 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. the absolute priority rule and adopted the codification of the rule now found in 11 U. S. C. § 1129(b)(2)(B)(ii) (1982 ed. and Supp. IV). “This [section] codifies the absolute priority rule from the dissenting class on down.” See H. R. Rep. No. 95-595, p. 413 (1977). We think the statutory language and the legislative history of § 1129(b) clearly bar any expansion of any exception to the absolute priority rule beyond that recognized in our cases at the time Congress enacted the 1978 Bankruptcy Code. In sum, we find no support in the Code or our previous decisions for the Court of Appeals’ application of the absolute priority rule in this case. We conclude that the rule applies here, and respondents’ promise of future labor warrants no exception to its operation. HI Respondents advance two additional arguments seeking to obviate the conclusion mandated by the absolute priority rule. A Respondents first advance a variety of “equitable arguments” which, they say, prevent the result we reach today. Respondents contend that the nature of bankruptcy proceedings—namely, their status as proceedings in “equity”—prevents petitioners from inequitably voting in the class of unsecured creditors, and requires that a “fair and equitable” reorganization plan in the best interests of all creditors and debtors be confirmed. See Brief for Respondents 14-16, 23-24. Similarly, the Court of Appeals found it significant that—in its view—respondents’ wholly unsecured creditors (as opposed to petitioners, who have partially secured claims) would fare better under the proposed reorganization plan than if the farm was liquidated. 794 F. 2d, at 402. The short answer to these arguments is that whatever equitable powers remain in the bankruptcy courts must and can only be exercised within the confines of the Bankruptcy Code. The Code provides that undersecured creditors can NORWEST BANK WORTHINGTON v. AHLERS 207 197 Opinion of the Court vote in the class of unsecured creditors, 11 U. S. C. § 506(a), the Code provides that a “fair and equitable” reorganization plan is one which complies with the absolute priority rule, 11 U. S. C. § 1129(b)(2)(B)(ii) (1982 ed. and Supp. IV), and the Code provides that it is up to the creditors—and not the courts—to accept or reject a reorganization plan which fails to provide them adequate protection or fails to honor the absolute priority rule, 11 U. S. C. § 1126 (1982 ed. and Supp. IV). The Court of Appeals may well have believed that petitioners or other unsecured creditors would be better off if respondents’ reorganization plan was confirmed. But that determination is for the creditors to make in the manner specified by the Code. 11 U. S. C. § 1126(c). Here, the principal creditors entitled to vote in the class of unsecured creditors (i. e., petitioners) objected to the proposed reorganization. This was their prerogative under the Code, and courts applying the Code must effectuate their decision. B Respondents further argue that the absolute priority rule has no application in this case, where the property which the junior interest holders wish to retain has no value to the senior unsecured creditors. In such a case, respondents argue, “the creditors are deprived of nothing if such a so-called interest’ continues in the possession of the reorganized debtor.” Brief for Respondents 19. Here, respondents contend, because the farm has no “going concern” value (apart from their own labor on it), any equity interest they retain in a reorganization of the farm is worthless, and therefore is not “property” under 11 U. S. C. § 1129(b)(2)(B)(ii) (1982 ed. and Supp. IV). We join with the consensus of authority which has rejected this “no value” theory.6 Even where debts far exceed the 6 Respondents note that one Bankruptcy Court has accepted the “no value” theory in a case similar to this one. See In re Star City Rebuilders, 208 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. current value of assets, a debtor who retains his equity interest in the enterprise retains “property.” Whether the value is “present or prospective, for dividends or only for purposes of control” a retained equity interest is a property interest to “which the creditors [are] entitled . . . before the stockholders [can] retain it for any purpose whatever.” Northern Pacific R. Co. v. Boyd, 228 U. S., at 508. Indeed, even in a sole proprietorship, where “going concern” value may be minimal, there may still be some value in the control of the enterprise; obviously, also at issue is the interest in potential future profits of a now-insolvent business. See SEC v. Canandaigua Enterprises Corp., 339 F. 2d 14, 21 (CA2 1964) (Friendly, J.). And while the Code itself does not define what “property” means as the term is used in § 1129(b), the relevant legislative history suggests that Congress’ meaning was quite broad. “ ‘[P]roperty’ includes both tangible and intangible property.” See H. R. Rep. No. 95-595, at 413. Moreover, respondents’ “no value” theory is particularly inapposite in this case. This argument appears not to have been presented to the Eighth Circuit, which implicitly concluded—to the contrary of respondents’ position here—that the equity interest respondents desire to retain has some value. See 794 F. 2d, at 402-403. Even cursory consideration reveals that the respondents’ retained interest under the plan might be “valuable” for one of several reasons. For example, the Court of Appeals provided that respondents would be entitled to a share of any profits earned by the sale of secured property during the reorganization period, id., at Inc., 62 B. R. 983, 988-989 (WD Va. 1986). But even in so doing, the Bankruptcy Court acknowledged that the bulk of authority was to the contrary. See id., at 989; see also In re Modem Glass Specialists, Inc., 42 B. R. 139, 140-141 (Bkrtcy. Ct. ED Wise. 1984); In re Huckabee Auto Co., 33 B. R. 132, 141 (Bkrtcy. Ct. MD Ga. 1981); In re Landau Boat Co., 8 B. R. 436, 438-439 (Bkrtcy. Ct. WD Mo. 1981). Petitioners contend that the Star City decision is the only one to accept the “no value” theory. See Tr. of Oral Arg. 16. Respondents did not contest this assertion or provide authority to the contrary. NORWEST BANK WORTHINGTON v. AHLERS 209 197 Opinion of the Court 403, and n. 18 —an interest which can hardly be considered “worthless.” And there is great common sense in petitioners’ contention that “obviously, there is some going concern value here, or the parties would not have been litigating over it for the last three years.” Tr. of Oral Arg. 15-16. Consequently, we think that the interest respondents would retain under any reorganization must be considered “property” under § 1129(b)(2)(B)(ii), and therefore can only be retained pursuant to a plan accepted by their creditors or formulated in compliance with the absolute priority rule. Since neither is true in this case, the Court of Appeals’ judgment for respondents cannot stand. IV In rejecting respondents’ position, we do not take lightly the concerns which militated the Eighth Circuit towards its result. As a Bankruptcy Judge commented on the Court of Appeals’ decision in this case: “We understand the motivation behind the majority opinion in Ahlers. Farm bankruptcies are in a state of crisis and we, too, sympathize with the plight of the American farmer. Nevertheless, the solution proposed by the Ahlers majority is contrary to the Bankruptcy Code and a long line of case law.” In re Stegall, 64 B. R. 296, 300 (Bkrtcy. Ct. CD Ill. 1986). Family farms hold a special place in our Nation’s history and folklore. Respondents and amici paint a grim picture of the problems facing farm families today, and present an eloquent appeal for action on their behalf.7 Yet relief from current farm woes cannot come from a misconstruction of the applicable bankruptcy laws, but rather, only from action by Congress.8 7 See Brief for Respondents 8-11; Brief for State of Arkansas et al. as Amici Curiae 1-2. 8 Even if current farm problems “justified” a judicial modification of the absolute priority rule along the line of the Court of Appeals’ opinion, not 210 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. The error of the Court of Appeals’ approach is further revealed by an examination of a measure Congress has recently enacted to cope with these very same concerns, the Family Farmers Bankruptcy Act of 1986, Pub. L. 99-554, §255, 100 Stat. 3105-3114. The Act creates a new Chapter 12 bankruptcy proceeding, under which family farmers can retain an equity interest in their farms while making loan repayments under a reorganization plan. See 11 U. S. C. §1201 et seq. (1982 ed., Supp. IV).9 The legislative history of the Act makes it clear that one of Congress’ principal concerns in adopting Chapter 12 was the difficulties farmers encountered in seeking to reorganize under Chapter 11.10 And yet, as respondents concede, the Court of Appeals’ decision here creates a method of proceeding under Chapter 11 which is far more advantageous to farmers than is Chapter 12. See Brief for Respondents 6-9; Tr. of Oral Arg. 23-25. Thus, given respondents’ reading of Chapter 11, Congress enacted a relief provision in Chapter 12 the least of the problems with the decision below is that there is no way to limit it to family farms, or even to small businesses generally. The shareholders of any corporate debtor might be able to evade the absolute priority rule under the Eighth Circuit’s reasoning; such a result surely cannot be squared with the case law or the Code as they are discussed supra. ’Respondents apparently cannot qualify for relief under Chapter 12 because they do not meet the requirements that Congress has adopted in defining what is an eligible “family farm” for purposes of Chapter 12. See Tr. of Oral Arg. 23; 11 U. S. C. § 101(17) (1982 ed., Supp. IV). In addition, respondents may be disqualified from filing under Chapter 12 because they had previously filed under Chapter 11. The Bankruptcy Courts are divided on the issue. Compare, e. g., In re Big Dry Angus Ranch, Inc., 69 B. R. 695, 699-701 (Mont. 1987), with, e. g., In re B. A. V., Inc., 68 B. R. 411, 412-413 (Colo. 1986). 10 See 132 Cong. Rec. 28592 (1986) (statement of Sen. Thurmond); id., at 28593 (statement of Sen. Grassley). Congress seemed particularly aware of the specific obstacle that the absolute priority rule posed to farm reorganizations. See Anderson, An Analysis of Pending Bills to Provide Family Farm Debtor Relief Under the Bankruptcy Code, reprinted in 132 Cong. Rec. 28593, 28599 (1986). NORWEST BANK WORTHINGTON v. AHLERS 211 197 Opinion of the Court which is less favorable to its intended beneficiaries than is current law. But in adopting Chapter 12, Congress thought it was doing just the opposite.11 “[W]here, as here, Congress adopts a new law . . . [it] normally can be presumed to have had knowledge of the interpretation given to the [old] law.” Lorillard v. Pons, 434 U. S. 575, 581 (1978). We think Congress’ understanding of Chapter 11 and its absolute priority rule—and not respondents’—is the correct one. We do not believe that Congress created, in Chapter 12, an option for farm reorganizations less accessible to most farmers than current Chapter 11 proceedings. V In sum, because we find the decision below to be contrary to the Bankruptcy Code and this Court’s previous cases, 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 Kennedy took no part in the consideration or decision of this case. 11 “Under this new chapter, it will be easier for a family farmer to confirm a plan of reorganization.” Joint Explanatory Statement of the Committee of Conference, reprinted in 132 Cong. Rec. 28143, 28144 (1986). 212 OCTOBER TERM, 1987 Syllabus 485 U. S. ARKANSAS BEST CORP. v. COMMISSIONER OF INTERNAL REVENUE CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 86-751. Argued December 9, 1987—Decided March 7, 1988 Under § 1221 of the Internal Revenue Code, the term “capital asset” means “property held by the taxpayer (whether or not connected with his trade or business), but does not include” five specified classes of property. Between 1968 and 1974, petitioner, a diversified holding company, acquired approximately 65% of a bank’s stock. The bank was apparently prosperous until 1972, when federal examiners classified it as a problem bank. In 1975, petitioner sold the bulk of the stock at a loss, which it claimed as an ordinary-loss deduction on its federal income tax return for that year. The Commissioner of Internal Revenue disallowed the deduction, finding that the loss was a capital loss rather than an ordinary loss. The Tax Court, relying on cases interpreting Corn Products Refining Co. v. Commissioner, 350 U. S. 46, held that, since the stock acquired through 1972 was purchased with a substantial investment purpose, it was a capital asset under § 1221 and therefore gave rise to a capital loss when it was sold; however, the loss realized on the stock acquired after 1972 was subject to ordinary-loss treatment since that stock had been bought and held exclusively for the business purpose of protecting petitioner’s reputation by fending off the bank’s failure. The Court of Appeals reversed the latter determination, ruling that all of the stock sold in 1975 was subject to capital-loss treatment. Held: A taxpayer’s motivation in purchasing an asset is irrelevant to the question whether it falls within the broad definition of “capital asset” in § 1221. Petitioner’s reading of Com Products as authorizing ordinaryasset treatment for any asset acquired and held for business rather than investment purposes is too expansive. That reading finds no support in § 1221’s language, which does not mention a business-motive test, and is in direct conflict with § 1221’s broad definition of capital asset. Similarly, the contention that § 1221’s five listed exceptions are merely illustrative rather than exhaustive is refuted by the statute’s “does not include” phrase, and by the legislative history and the applicable Treasury regulation. Moreover, petitioner’s reading would make surplusage of three of the statutory exceptions, whose excluded classes of property would undoubtedly satisfy a business-motive test. Com Products must instead be interpreted as standing for the narrow proposition that “hedg- ARKANSAS BEST CORP. v. COMMISSIONER 213 212 Opinion of the Court ing” transactions that are an integral part of a business’ inventorypurchase system fall within § 1221’s first exception for “property . . . which would properly be included in the [taxpayer’s] inventory.” Since petitioner, which is not a dealer in securities, has never suggested that its bank stock falls within the inventory exclusion, Com Products has no application in the present context. Because petitioner’s bank stock falls within § 1221’s broad definition of “capital asset” and is outside the classes of excluded property, the loss arising from its sale is a capital loss. Pp. 216-223. 800 F. 2d 215, affirmed. Marshall, J., delivered the opinion of the Court, in which all other Members joined, except Kennedy, J., who took no part in the consideration or decision of the case. Vester T. Hughes, Jr., argued the cause for petitioner. With him on the briefs were David Bryant and Stephen D. Good. Alan I. Horowitz argued the cause for respondent. With him on the brief were Solicitor General Fried, Acting Assistant Attorney General Dumey, Deputy Solicitor General Lauber, and Michael L. Paup* Justice Marshall delivered the opinion of the Court. The issue presented in this case is whether capital stock held by petitioner Arkansas Best Corporation (Arkansas Best) is a “capital asset” as defined in § 1221 of the Internal Revenue Code regardless of whether the stock was purchased and held for a business purpose or for an investment purpose. I Arkansas Best is a diversified holding company. In 1968 it acquired approximately 65% of the stock of the National * Thomas Smidt II, Charles L. Saunders, Jr., and A. Jerry Busby filed a brief for Circle K Corp, as amicus curiae urging reversal. Briefs of amici curiae were filed for Kraft, Inc., by Don S. Harnack, James L. Malone III, Richard A. Hanson, and Thomas J. McHugh; and for the National Council of Farmer Cooperatives by Arthur E. Bryan, Jr., George W. Benson, and James S. Krzyminski. 214 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. Bank of Commerce (Bank) in Dallas, Texas. Between 1969 and 1974, Arkansas Best more than tripled the number of shares it owned in the Bank, although its percentage interest in the Bank remained relatively stable. These acquisitions were prompted principally by the Bank’s need for added capital. Until 1972, the Bank appeared to be prosperous and growing, and the added capital was necessary to accommodate this growth. As the Dallas real estate market declined, however, so too did the financial health of the Bank, which had a heavy concentration of loans in the local real estate industry. In 1972, federal examiners classified the Bank as a problem bank. The infusion of capital after 1972 was prompted by the loan portfolio problems of the bank. Petitioner sold the bulk of its Bank stock on June 30, 1975, leaving it with only a 14.7% stake in the Bank. On its federal income tax return for 1975, petitioner claimed a deduction for an ordinary loss of $9,995,688 resulting from the sale of the stock. The Commissioner of Internal Revenue disallowed the deduction, finding that the loss from the sale of stock was a capital loss, rather than an ordinary loss, and that it therefore was subject to the capital loss limitations in the Internal Revenue Code.1 Arkansas Best challenged the Commissioner’s determination in the United States Tax Court. The Tax Court, relying on cases interpreting Com Products Refining Co. v. Commissioner, 350 U. S. 46 (1955), held that stock .purchased with a substantial investment purpose is a capital asset which, when sold, gives rise to a capital gain or loss, whereas stock purchased and held for a business purpose, without any substantial investment motive, is an ordinary asset whose sale gives rise to ordinary gains or losses. See 83 T. C. 640, 1 Title 26 U. S. C. § 1211(a) states that “[i]n the case of a corporation, losses from sales or exchanges of capital assets shall be allowed only to the extent of gains from such sales or exchanges.” Section 1212(a) establishes rules governing carrybacks and carryovers of capital losses, permitting such losses to offset capital gains in certain earlier or later years. ARKANSAS BEST CORP. v. COMMISSIONER 215 212 Opinion of the Court 653-654 (1984). The court characterized Arkansas Best’s acquisitions through 1972 as occurring during the Bank’s “‘growth’ phase,” and found that these acquisitions “were motivated primarily by investment purpose and only incidentally by some business purpose.” Id., at 654. The stock acquired during this period therefore constituted a capital asset, which gave rise to a capital loss when sold in 1975. The court determined, however, that the acquisitions after 1972 occurred during the Bank’s “‘problem’ phase,” ibid., and, except for certain minor exceptions, “were made exclusively for business purposes and subsequently held for the same reasons.” Id., at 656. These acquisitions, the court found, were designed to preserve petitioner’s business reputation, because without the added capital the Bank probably would have failed. Id., at 656-657. The loss realized on the sale of this stock was thus held to be an ordinary loss. The Court of Appeals for the Eighth Circuit reversed the Tax Court’s determination that the loss realized on stock purchased after 1972 was subject to ordinary-loss treatment, holding that all of the Bank stock sold in 1975 was subject to capital-loss treatment. 800 F. 2d 215 (1986). The court reasoned that the Bank stock clearly fell within the general definition of “capital asset” in Internal Revenue Code § 1221, and that the stock did not fall within any of the specific statutory exceptions to this definition. The court concluded that Arkansas Best’s purpose in acquiring and holding the stock was irrelevant to the determination whether the stock was a capital asset. We granted certiorari, 480 U. S. 930, and now affirm. II Section 1221 of the Internal Revenue Code defines “capital asset” broadly as “property held by the taxpayer (whether or not connected with his trade or business),” and then excludes five specific classes of property from capital-asset 216 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. status. In the statute’s present form,2 the classes of property exempted from the broad definition are (1) “property of a kind which would properly be included in the inventory of the taxpayer”; (2) real property or other depreciable property used in the taxpayer’s trade or business; (3) “a copyright, a literary, musical, or artistic composition,” or similar property; (4) “accounts or notes receivable acquired in the ordinary course of trade or business for services rendered” or from the sale of inventory; and (5) publications of the Federal Government. Arkansas Best acknowledges that the Bank stock falls within the literal definition of “capital asset” in § 1221, and is outside of the statutory exclusions. It asserts, however, that this determination does not end the inquiry. Petitioner argues that in Com Products Refining Co. n. Commissioner, supra, this Court rejected a literal reading of § 1221, and concluded that assets acquired and sold for ordinary business purposes rather than for investment purposes should be given ordinary-asset treatment. Petitioner’s reading of Com Products finds much support in the academic literature3 and in the courts.4 Unfortunately for petitioner, this broad reading finds no support in the language of § 1221. 2 In 1975, when petitioner sold its Bank stock, § 1221 contained a different exception (5), which excluded certain federal and state debt obligations. See 26 U. S. C. § 1221(5) (1970 ed.). That exception was repealed by the Economic Recovery Tax Act of 1981, Pub. L. 97-34, § 505(a), 95 Stat. 331. The present exception (5) was added by the Tax Reform Act of 1976, Pub. L. 94-455, § 2132(a), 90 Stat. 1925. These changes have no bearing on this case. 3 See, e. g., 2 B. Bittker, Federal Taxation of Income, Estates and Gifts 51.10.3, p. 51-62 (1981); Chirelstein, Capital Gain and the Sale of a Business Opportunity: The Income Tax Treatment of Contract Termination Payments, 49 Minn. L. Rev. 1, 41 (1964); Troxell & Noall, Judicial Erosion of the Concept of Securities as Capital Assets, 19 Tax L. Rev. 185, 187 (1964); Note, The Com Products Doctrine and Its Application to Partnership Interests, 79 Colum. L. Rev. 341, and n. 3 (1979). 4 See, e. g., Campbell Taggart, Inc. v. United States, 744 F. 2d 442, 456-458 (CA5 1984); Steadman v. Commissioner, 424 F. 2d 1, 5 (CA6), cert, denied, 400 U. S. 869 (1970); Booth Newspapers, Inc. v. United ARKANSAS BEST CORP. v. COMMISSIONER 217 212 Opinion of the Court In essence, petitioner argues that “property held by the taxpayer (whether or not connected with his trade or business)” does not include property that is acquired and held for a business purpose. In petitioner’s view an asset’s status as “property” thus turns on the motivation behind its acquisition. This motive test, however, is not only nowhere mentioned in § 1221, but it is also in direct conflict with the parenthetical phrase “whether or not connected with his trade or business.” The broad definition of the term “capital asset” explicitly makes irrelevant any consideration of the property’s connection with the taxpayer’s business, whereas petitioner’s rule would make this factor dispositive.5 In a related argument, petitioner contends that the five exceptions listed in § 1221 for certain kinds of property are illustrative, rather than exhaustive, and that courts are therefore free to fashion additional exceptions in order to further the general purposes of the capital-asset provisions. The language of the statute refutes petitioner’s construction. Section 1221 provides that “capital asset” means “property held by the taxpayer[,] . . . but does not include” the five classes States, 157 Ct. Cl. 886, 893-896, 303 F. 2d 916, 920-921 (1962); W. W. Windle Co. v. Commissioner, 65 T. C. 694, 707-713 (1976). 8 Petitioner mistakenly relies on cases in which this Court, in narrowly applying the general definition of “capital asset,” has “construed ‘capital asset’ to exclude property representing income items or accretions to the value of a capital asset themselves properly attributable to income,” even though these items are property in the broad sense of the word. United States v. Midland-Ross Corp., 381 U. S. 54, 57 (1965). See, e. g., Commissioner v. Gillette Motor Co., 364 U. S. 130 (1960) (“capital asset” does not include compensation awarded taxpayer that represented fair rental value of its facilities); Commissioner v. P. G. Lake, Inc., 356 U. S. 260 (1958) (“capital asset” does not include proceeds from sale of oil payment rights); Hort v. Commissioner, 313 U. S. 28 (1941) (“capital asset” does not include payment to lessor for cancellation of unexpired portion of a lease). This line of cases, based on the premise that § 1221 “property” does not include claims or rights to ordinary income, has no application in the present context. Petitioner sold capital stock, not a claim to ordinary income. 218 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. of property listed as exceptions. We believe this locution signifies that the listed exceptions are exclusive. The body of § 1221 establishes a general definition of the term “capital asset,” and the phrase “does not include” takes out of that broad definition only the classes of property that are specifically mentioned. The legislative history of the capitalasset definition supports this interpretation, see H. R. Rep. No. 704, 73d Cong., 2d Sess., 31 (1934) (“[T]he definition includes all property, except as specifically excluded”); H. R. Rep. No. 1337, 83d Cong., 2d Sess., A273 (1954) (“[A] capital asset is property held by the taxpayer with certain exceptions”), as does the applicable Treasury regulation, see 26 CFR § 1.1221-l(a) (1987) (“The term ‘capital assets’ includes all classes of property not specifically excluded by section 1221”). Petitioner’s reading of the statute is also in tension with the exceptions listed in § 1221. These exclusions would be largely superfluous if assets acquired primarily or exclusively for business purposes were not capital assets. Inventory, real or depreciable property used in the taxpayer’s trade or business, and accounts or notes receivable acquired in the ordinary course of business, would undoubtedly satisfy such a business-motive test. Yet these exceptions were created by Congress in separate enactments spanning 30 years.6 Without any express direction from Congress, we are unwilling to read § 1221 in a manner that makes surplusage of these statutory exclusions. 6 The inventory exception was part of the original enactment of the capital-asset provision in 1924. See Revenue Act of 1924, ch. 234, § 208(a)(8), 43 Stat. 263. Depreciable property used in a trade or business was excluded in 1938, see Revenue Act of 1938, ch. 289, § 117(a)(1), 52 Stat. 500, and real property used in a trade or business was excluded in 1942, see Revenue Act of 1942, ch. 619, § 151(a), 56 Stat. 846. The exception for accounts and notes receivable acquired in the ordinary course of trade or business was added in 1954. Internal Revenue Code of 1954, § 1221(4), 68A Stat. 322. ARKANSAS BEST CORP. v. COMMISSIONER 219 212 Opinion of the Court In the end, petitioner places all reliance on its reading of Com Products Refining Co. v. Commissioner, 350 U. S. 46 (1955)—a reading we believe is too expansive. In Com Products, the Court considered whether income arising from a taxpayer’s dealings in corn futures was entitled to capitalgains treatment. The taxpayer was a company that converted corn into starches, sugars, and other products. After droughts in the 1930’s caused sharp increases in corn prices, the company began a program of buying corn futures to assure itself an adequate supply of corn and protect against price increases. See id., at 48. The company “would take delivery on such contracts as it found necessary to its manufacturing operations and sell the remainder in early summer if no shortage was imminent. If shortages appeared, however, it sold futures only as it bought spot corn for grinding.” Id., at 48-49. The Court characterized the company’s dealing in corn futures as “hedging.” Id., at 51. As explained by the Court of Appeals in Com Products, “[h]edging is a method of dealing in commodity futures whereby a person or business protects itself against price fluctuations at the time of delivery of the product which it sells or buys.” 215 F. 2d 513, 515 (CA2 1954). In evaluating the company’s claim that the sales of com futures resulted in capital gains and losses, this Court stated: “Nor can we find support for petitioner’s contention that hedging is not within the exclusions of [§ 1221]. Admittedly, petitioner’s corn futures do not come within the literal language of the exclusions set out in that section. They were not stock in trade, actual inventory, property held for sale to customers or depreciable property used in a trade or business. But the capital-asset provision of [§ 1221] must not be so broadly applied as to defeat rather than further the purpose of Congress. Congress intended that profits and losses arising from the everyday operation of a business be considered as ordinary income or loss rather than capital gain or loss. 220 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. ... Since this section is an exception from the normal tax requirements of the Internal Revenue Code, the definition of a capital asset must be narrowly applied and its exclusions interpreted broadly.” 350 U. S., at 51-52 (citations omitted). The Court went on to note that hedging transactions consistently had been considered to give rise to ordinary gains and losses, and then concluded that the corn futures were subject to ordinary-asset treatment. Id., at 52-53. The Court in Com Products proffered the oft-quoted rule of construction that the definition of “capital asset” must be narrowly applied and its exclusions interpreted broadly, but it did not state explicitly whether the holding was based on a narrow reading of the phrase “property held by the taxpayer,” or on a broad reading of the inventory exclusion of § 1221. In light of the stark language of § 1221, however, we believe that Com Products is properly interpreted as involving an application of § 1221’s inventory exception. Such a reading is consistent both with the Court’s reasoning in that case and with § 1221. The Court stated in Corn Products that the company’s futures transactions were “an integral part of its business designed to protect its manufacturing operations against a price increase in its principal raw material and to assure a ready supply for future manufacturing requirements.” 350 U. S., at 50. The company bought, sold, and took delivery under the futures contracts as required by the company’s manufacturing needs. As Professor Bittker notes, under these circumstances, the futures can “easily be viewed as surrogates for the raw material itself.” 2 B. Bittker, Federal Taxation of Income, Estates and Gifts 1151.10.3, p. 51-62 (1981). The Court of Appeals for the Second Circuit in Com Products clearly took this approach. That court stated that when commodity futures are “utilized solely for the purpose of stabilizing inventory cost[,] . . . [they] cannot reasonably be separated from the inventory items,” and concluded that “property used in hedging trans- ARKANSAS BEST CORP. v. COMMISSIONER 221 212 Opinion of the Court actions properly comes within the exclusions of [§ 1221].” 215 F. 2d, at 516. This Court indicated its acceptance of the Second Circuit’s reasoning when it began the central paragraph of its opinion: “Nor can we find support for petitioner’s contention that hedging is not within the exclusions of [§ 1221].” 350 U. S., at 51. In the following paragraph, the Court argued that the Treasury had consistently viewed such hedging transactions as a form of insurance to stabilize the cost of inventory, and cited a Treasury ruling which concluded that the value of a manufacturer’s raw-material inventory should be adjusted to take into account hedging transactions in futures contracts. See id., at 52-53 (citing G. C. M. 17322, XV-2 Cum. Bull. 151 (1936)). This discussion, read in light of the Second Circuit’s holding and the plain language of § 1221, convinces us that although the corn futures were not “actual inventory,” their use as an integral part of the taxpayer’s inventory-purchase system led the Court to treat them as substitutes for the corn inventory such that they came within a broad reading of “property of a kind which would properly be included in the inventory of the taxpayer” in § 1221. Petitioner argues that by focusing attention on whether the asset was acquired and sold as an integral part of the taxpayer’s everyday business operations, the Court in Com Products intended to create a general exemption from capital-asset status for assets acquired for business purposes. We believe petitioner misunderstands the relevance of the Court’s inquiry. A business connection, although irrelevant to the initial determination whether an item is a capital asset, is relevant in determining the applicability of certain of the statutory exceptions, including the inventory exception. The close connection between the futures transactions and the taxpayer’s business in Corn Products was crucial to whether the corn futures could be considered surrogates for the stored inventory of raw corn. For if the futures dealings were not part of the company’s inventory-purchase system, 222 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. and instead amounted simply to speculation in corn futures, they could not be considered substitutes for the company’s corn inventory, and would fall outside even a broad reading of the inventory exclusion. We conclude that Corn Products is properly interpreted as standing for the narrow proposition that hedging transactions that are an integral part of a business’ inventory-purchase system fall within the inventory exclusion of § 1221.7 Arkansas Best, which is not a dealer in securities, has never suggested that the Bank stock falls within the inventory exclusion. Corn Products thus has no application to this case. It is also important to note that the business-motive test advocated by petitioner is subject to the same kind of abuse that the Court condemned in Corn Products. The Court explained in Corn Products that unless hedging transactions were subject to ordinary gain and loss treatment, taxpayers engaged in such transactions could “transmute ordinary income into capital gain at will.” 350 U. S., at 53-54. The hedger could garner capital-asset treatment by selling the future and purchasing the commodity on the spot market, or ordinary-asset treatment by taking delivery under the future contract. In a similar vein, if capital stock purchased and held for a business purpose is an ordinary asset, whereas the same stock purchased and held with an investment motive is a capital asset, a taxpayer such as Arkansas Best could have significant influence over whether the asset would receive capital or ordinary treatment. Because stock is most natu- 7 Although congressional inaction is generally a poor measure of congressional intent, we are given some pause by the fact that over 25 years have passed since Com Products Refining Co. v. Commissioner was initially interpreted as excluding assets acquired for business purposes from the definition of “capital asset,” see Booth Newspapers, Inc. v. United States, 157 Ct. Cl. 886, 303 F. 2d 916 (1962), without any sign of disfavor from Congress. We cannot ignore the unambiguous language of § 1221, however, no matter how reticent Congress has been. If a broad exclusion from capital-asset status is to be created for assets acquired for business purposes, it must come from congressional action, not silence. ARKANSAS BEST CORP. v. COMMISSIONER 223 212 Opinion of the Court rally viewed as a capital asset, the Internal Revenue Service would be hard pressed to challenge a taxpayer’s claim that stock was acquired as an investment, and that a gain arising from the sale of such stock was therefore a capital gain. Indeed, we are unaware of a single decision that has applied the business-motive test so as to require a taxpayer to report a gain from the sale of stock as an ordinary gain. If the same stock is sold at a loss, however, the taxpayer may be able to garner ordinary-loss treatment by emphasizing the business purpose behind the stock’s acquisition. The potential for such abuse was evidenced in this case by the fact that as late as 1974, when Arkansas Best still hoped to sell the Bank stock at a profit, Arkansas Best apparently expected to report the gain as a capital gain. See 83 T. C., at 647-648. Ill We conclude that a taxpayer’s motivation in purchasing an asset is irrelevant to the question whether the asset is “property held by a taxpayer (whether or not connected with his business)” and is thus within § 122l’s general definition of “capital asset.” Because the capital stock held by petitioner falls within the broad definition of the term “capital asset” in § 1221 and is outside the classes of property excluded from capital-asset status, the loss arising from the sale of the stock is a capital loss. Com Products Refining Co. v. Commissioner, supra, which we interpret as involving a broad reading of the inventory exclusion of § 1221, has no application in the present context. Accordingly, the judgment of the Court of Appeals is affirmed. It is so ordered. Justice Kennedy took no part in the consideration or decision of this case. 224 OCTOBER TERM, 1987 Syllabus 485 U. S. BASIC INC. et AL. V. LEVINSON et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 86-279. Argued November 2, 1987—Decided March 7, 1988 The Securities and Exchange Commission’s Rule 10b-5, promulgated under § 10(b) of the Securities Exchange Act of 1934 (Act), prohibits, in connection with the purchase or sale of any security, the making of any untrue statement of a material fact or the omission of a material fact that would render statements made not misleading. In December 1978, Combustion Engineering, Inc., and Basic Incorporated agreed to merge. During the preceding two years, representatives of the two companies had various meetings and conversations regarding the possibility of a merger; during that time Basic made three public statements denying that any merger negotiations were taking place or that it knew of any corporate developments that would account for heavy trading activity in its stock. Respondents, former Basic shareholders who sold their stock between Basic’s first public denial of merger activity and the suspension of trading in Basic stock just prior to the merger announcement, filed a class action against Basic and some of its directors, alleging that Basic’s statements had been false or misleading, in violation of § 10(b) and Rule 10b-5, and that respondents were injured by selling their shares at prices artificially depressed by those statements. The District Court certified respondents’ class, but granted summary judgment for petitioners on the merits. The Court of Appeals affirmed the class certification, agreeing that under a “fraud-on-the-market” theory, respondents’ reliance on petitioners’ misrepresentations could be presumed, and thus that common issues predominated over questions pertaining to individual plaintiffs. The Court of Appeals reversed the grant of summary judgment and remanded, rejecting the District Court’s view that preliminary merger discussions are immaterial as a matter of law, and holding that even discussions that might not otherwise have been material, become so by virtue of a statement denying their existence. Held: 1. The standard set forth in TSC Industries, Inc. n. Northway, Inc., 426 U. S. 438, whereby an omitted fact is material if there is a substantial likelihood that its disclosure would have been considered significant by a reasonable investor, is expressly adopted for the § 10(b) and Rule 10b-5 context. Pp. 230-232. BASIC INC. v. LEVINSON 225 224 Syllabus 2. The “agreement-in-principle” test, under which preliminary merger discussions do not become material until the would-be merger partners have reached agreement as to the price and structure of the transaction, is rejected as a bright-line materiality test. Its policy-based rationales do not justify the exclusion of otherwise significant information from the definition of materiality. Pp. 232-236. 3. The Court of Appeals’ view that information concerning otherwise insignificant developments becomes material solely because of an affirmative denial of their existence is also rejected: Rule 10b-5 requires that the statements be misleading as to a material fact. Pp. 237-238. 4. Materiality in the merger context depends on the probability that the transaction will be consummated, and its significance to the issuer of the securities. Thus, materiality depends on the facts and is to be determined on a case-by-case basis. Pp. 238-241. 5. The courts below properly applied a presumption of reliance, supported in part by the fraud-on-the-market theory, instead of requiring each plaintiff to show direct reliance on Basic’s statements. Such a presumption relieves the Rule 10b-5 plaintiff of an unrealistic evidentiary burden, and is consistent with, and supportive of, the Act’s policy of requiring full disclosure and fostering reliance on market integrity. The presumption is also supported by common sense and probability: an investor who trades stock at the price set by an impersonal market does so in reliance on the integrity of that price. Because most publicly available information is reflected in market price, an investor’s reliance on any public material misrepresentations may be presumed for purposes of a Rule 10b-5 action. Pp. 241-247. 6. The presumption of reliance may be rebutted: Rule 10b-5 defendants may attempt to show that the price was not affected by their misrepresentation, or that the plaintiff did not trade in reliance on the integrity of the market price. Pp. 248-249. 786 F. 2d 741, vacated and remanded. Blackmun, J., delivered the opinion of the Court, in which Brennan, Marshall, and Stevens, JJ., joined, and in Parts I, II, and III of which White and O’Connor, JJ., joined. White, J., filed an opinion concurring in part and dissenting in part, in which O’Connor, J., joined, post, p. 250. Rehnquist, C. J., and Scalia and Kennedy, JJ., took no part in the consideration or decision of the case. Joel W. Sternman argued the cause for petitioners. With him on the briefs were H. Stephen Madsen, Norman S. Jeavons, William W. Golub, Ambrose Doskow, Arnold I. Roth, and Katherine M. Blakeley. 226 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. Wayne A. Cross argued the cause for respondents. With him on the brief were David S. Elkind and Lee A. Pickard* Justice Blackmun delivered the opinion of the Court. This case requires us to apply the materiality requirement of § 10(b) of the Securities Exchange Act of 1934 (1934 Act), 48 Stat. 881, as amended, 15 U. S. C. §78a et seq., and the Securities and Exchange Commission’s Rule 10b-5, 17 CFR § 240.10b-5 (1987), promulgated thereunder, in the context of preliminary corporate merger discussions. We must also determine whether a person who traded a corporation’s shares on a securities exchange after the issuance of a materially misleading statement by the corporation may invoke a rebuttable presumption that, in trading, he relied on the integrity of the price set by the market. I Prior to December 20, 1978, Basic Incorporated was a publicly traded company primarily engaged in the business of manufacturing chemical refractories for the steel industry. As early as 1965 or 1966, Combustion Engineering, Inc., a company producing mostly alumina-based refractories, expressed some interest in acquiring Basic, but was deterred from pursuing this inclination seriously because of antitrust concerns it then entertained. See App. 81-83. In 1976, however, regulatory action opened the way to a renewal of *Briefs of amici curiae urging reversal were filed for the American Corporate Counsel Association by Stephen M. Shapiro, Andrew L. Frey, Kenneth S. Geller, Daniel Harris, and Mark I. Levy; for Arthur Andersen & Co. et al. by Victor M. Earle III, Carl D. Liggio, Donald Dreyfus, Harris J. Amhowitz, Kenneth H. Lang, Richard H. Murray, Leonard P. Novello, and Eldon Olson; and for the American Institute of Certified Public Accountants by Louis A. Craco. Solicitor General Fried, Deputy Solicitor General Cohen, Jerrold J. Ganzfried, Daniel L. Goelzer, Paul Gonson, Jacob H. Stillman, Eric Summergrad, Katharine B. Gresham, and Max Berueffy filed a brief for the United States as amicus curiae. BASIC INC. v. LEVINSON 227 224 Opinion of the Court Combustion’s interest.1 The “Strategic Plan,” dated October 25, 1976, for Combustion’s Industrial Products Group included the objective: “Acquire Basic Inc. $30 million.” App. 337. Beginning in September 1976, Combustion representatives had meetings and telephone conversations with Basic officers and directors, including petitioners here,* 2 concerning the possibility of a merger.3 During 1977 and 1978, Basic made three public statements denying that it was engaged in merger negotiations.4 On December 18, 1978, Basic asked ’In what are known as the Kaiser-Lavino proceedings, the Federal Trade Commission took the position in 1976 that basic or chemical refractories were in a market separate from nonbasic or acidic or alumina refractories; this would remove the antitrust barrier to a merger between Basic and Combustion’s refractories subsidiary. On October 12, 1978, the Initial Decision of the Administrative Law Judge confirmed that position. See In re Kaiser Aluminum & Chemical Corp., 93 F. T. C. 764, 771, 809-810 (1979). See also the opinion of the Court of Appeals in this case, 786 F. 2d 741, 745 (CA6 1986). 2 In addition to Basic itself, petitioners are individuals who had been members of its board of directors prior to 1979: Anthony M. Caito, Samuel Eels, Jr., John A. Gelbach, Harley C. Lee, Max Muller, H. Chapman Rose, Edmund G. Sylvester, and John C. Wilson, Jr. Another former director, Mathew J. Ludwig, was a party to the proceedings below but died on July 17, 1986, and is not a petitioner here. See Brief for Petitioners ii. 3 In light of our disposition of this case, any further characterization of these discussions must await application, on remand, of the materiality standard adopted today. 4 On October 21, 1977, after heavy trading and a new high in Basic stock, the following news item appeared in the Cleveland Plain Dealer: “[Basic] ^President Max Muller said the company knew no reason for the stock’s activity and that no negotiations were under way with any company for a merger. He said Flintkote recently denied Wall Street rumors that it would make a tender offer of $25 a share for control of the Clevelandbased maker of refractories for the steel industry.” App. 363. On September 25, 1978, in reply to an inquiry from the New York Stock Exchange, Basic issued a release concerning increased activity in its stock and stated that “management is unaware of any present or pending company development that would result in the abnormally heavy trading activity and price flue- 228 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. the New York Stock Exchange to suspend trading in its shares and issued a release stating that it had been “approached” by another company concerning a merger. Id., at 413. On December 19, Basic’s board endorsed Combustion’s offer of $46 per share for its common stock, id., at 335, 414-416, and on the following day publicly announced its approval of Combustion’s tender offer for all outstanding shares. Respondents are former Basic shareholders who sold their stock after Basic’s first public statement of October 21, 1977, and before the suspension of trading in December 1978. Respondents brought a class action against Basic and its directors, asserting that the defendants issued three false or misleading public statements and thereby were in violation of § 10(b) of the 1934 Act and of Rule 10b-5. Respondents alleged that they were injured by selling Basic shares at artificially depressed prices in a market affected by petitioners’ misleading statements and in reliance thereon. The District Court adopted a presumption of reliance by members of the plaintiff class upon petitioners’ public statements that enabled the court to conclude that common questions of fact or law predominated over particular questions pertaining to individual plaintiffs. See Fed. Rule Civ. Proc. 23(b)(3). The District Court therefore certified respondents’ class.5 On the merits, however, the District Court granted tuation in company shares that have been experienced in the past few days.” Id., at 401. On November 6, 1978, Basic issued to its shareholders a “Nine Months Report 1978.” This Report stated: “With regard to the stock market activity in the Company’s shares we remain unaware of any present or pending developments which would account for the high volume of trading and price fluctuations in recent months.” Id., at 403. 5 Respondents initially sought to represent all those who sold Basic shares between October 1, 1976, and December 20, 1978. See Amended Complaint in No. C79-1220 (ND Ohio), 5[ 5. The District Court, however, recognized a class period extending only from October 21, 1977, the date of the first public statement, rather than from the date negotiations allegedly BASIC INC. v. LEVINSON 229 224 Opinion of the Court summary judgment for the defendants. It held that, as a matter of law, any misstatements were immaterial: there were no negotiations ongoing at the time of the first statement, and although negotiations were taking place when the second and third statements were issued, those negotiations were not “destined, with reasonable certainty, to become a merger agreement in principle.” App. to Pet. for Cert. 103a. The United States Court of Appeals for the Sixth Circuit affirmed the class certification, but reversed the District Court’s summary judgment, and remanded the case. 786 F. 2d 741 (1986). The court reasoned that while petitioners were under no general duty to disclose their discussions with Combustion, any statement the company voluntarily released could not be “‘so incomplete as to mislead.’” Id., at 746, quoting SEC v. Texas Gulf Sulphur Co., 401 F. 2d 833, 862 (CA2 1968) (en banc), cert, denied sub nom. Coates v. SEC, 394 U. S. 976 (1969). In the Court of Appeals’ view, Basic’s statements that no negotiations were taking place, and that it knew of no corporate developments to account for the heavy trading activity, were misleading. With respect to materiality, the court rejected the argument that preliminary merger discussions are immaterial as a matter of law, and held that “once a statement is made denying the existence of any discussions, even discussions that might not have been material in absence of the denial are material because they make the statement made untrue.” 786 F. 2d, at 749. The Court of Appeals joined a number of other Circuits in accepting the “fraud-on-the-market theory” to create a rebuttable presumption that respondents relied on petitioners’ ma commenced. In its certification decision, as subsequently amended, the District Court also excluded from the class those who had purchased Basic shares after the October 1977 statement but sold them before the September 1978 statement, App. to Pet. for Cert. 123a-124a, and those who sold their shares after the close of the market on Friday, December 15, 1978. Id., at 137a. 230 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. terial misrepresentations, noting that without the presumption it would be impractical to certify a class under Federal Rule of Civil Procedure 23(b)(3). See 786 F. 2d, at 750-751. We granted certiorari, 479 U. S. 1083 (1987), to resolve the split, see Part III, infra, among the Courts of Appeals as to the standard of materiality applicable to preliminary merger discussions, and to determine whether the courts below properly applied a presumption of reliance in certifying the class, rather than requiring each class member to show direct reliance on Basic’s statements. II The 1934 Act was designed to protect investors against manipulation of stock prices. See S. Rep. No. 792, 73d Cong., 2d Sess., 1-5 (1934). Underlying the adoption of extensive disclosure requirements was a legislative philosophy: “There cannot be honest markets without honest publicity. Manipulation and dishonest practices of the market place thrive upon mystery and secrecy.” H. R. Rep. No. 1383, 73d Cong., 2d Sess., 11 (1934). This Court “repeatedly has described the ‘fundamental purpose’ of the Act as implementing a ‘philosophy of full disclosure.’” Santa Fe Industries, Inc. v. Green, 430 U. S. 462, 477-478 (1977), quoting SEC v. Capital Gains Research Bureau, Inc., 375 U. S. 180, 186 (1963). Pursuant to its authority under § 10(b) of the 1934 Act, 15 U. S. C. § 78j, the Securities and Exchange Commission promulgated Rule 10b-5.6 Judicial interpretation and applica 6 In relevant part, Rule 10b-5 provides: “It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange, “(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading . . . , “in connection with the purchase or sale of any security.” BASIC INC. v. LEVINSON 231 224 Opinion of the Court tion, legislative acquiescence, and the passage of time have removed any doubt that a private cause of action exists for a violation of § 10(b) and Rule 10b-5, and constitutes an essential tool for enforcement of the 1934 Act’s requirements. See, e. g., Ernst & Ernst v. Hochfelder, 425 U. S. 185, 196 (1976); Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 730 (1975). The Court previously has addressed various positive and common-law requirements for a violation of § 10(b) or of Rule 10b-5. See, e. g., Santa Fe Industries, Inc. v. Green, supra (“manipulative or deceptive” requirement of the statute); Blue Chip Stamps v. Manor Drug Stores, supra (“in connection with the purchase or sale” requirement of the Rule); Dirks v. SEC, 463 U. S. 646 (1983) (duty to disclose); Chiarella v. United States, 445 U. S. 222 (1980) (same); Ernst & Ernst v. Hochfelder, supra (scienter). See also Carpenter v. United States, 484 U. S. 19 (1987) (confidentiality). The Court also explicitly has defined a standard of materiality under the securities laws, see TSC Industries, Inc. v. Northway, Inc., 426 U. S. 438 (1976), concluding in the proxy-solicitation context that “[a]n omitted fact is material if there is a substantial likelihood that a reasonable shareholder would consider it important in deciding how to vote.” Id., at 449.7 Acknowledging that certain information concerning corporate developments could well be of “dubious significance,” id., at 448, the Court was careful not to set too low a standard of materiality; it was concerned that a minimal standard might bring an overabundance of information within its reach, and lead management “simply to bury the shareholders in an avalanche of trivial information—a result that is hardly conducive to informed decisionmaking.” Id., at 448-449. It further explained that to fulfill the materiality requirement “there must be a substantial likelihood that the disclosure of the omitted fact would have been viewed by the 7 TSC Industries arose under § 14(a), as amended, of the 1934 Act, 15 U. S. C. §78n(a), and Rule 14a-9, 17 CFR §240.14a-9 (1975). 232 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. reasonable investor as having significantly altered the ‘total mix’ of information made available.” Id., at 449. We now expressly adopt the TSC Industries standard of materiality for the § 10(b) and Rule 10b-5 context.8 Ill The application of this materiality standard to preliminary merger discussions is not self-evident. Where the impact of the corporate development on the target’s fortune is certain and clear, the TSC Industries materiality definition admits straightforward application. Where, on the other hand, the event is contingent or speculative in nature, it is difficult to ascertain whether the “reasonable investor” would have considered the omitted information significant at the time. Merger negotiations, because of the ever-present possibility that the contemplated transaction will not be effectuated, fall into the latter category.9 A Petitioners urge upon us a Third Circuit test for resolving this difficulty.10 See Brief for Petitioners 20-22. Under this 8 This application of the § 14(a) definition of materiality to § 10(b) and Rule 10b-5 is not disputed. See Brief for Petitioners 17, n. 12; Brief for Respondents 30, n. 10; Brief for SEC as Amicus Curiae 8, n. 4. See also McGrath n. Zenith Radio Corp., 651 F. 2d 458, 466, n. 4 (CA7), cert, denied, 454 U. S. 835 (1981), and Goldberg v. Meridor, 567 F. 2d 209, 218-219 (CA2 1977), cert, denied, 434 U. S. 1069 (1978). 9 We do not address here any other kinds of contingent or speculative information, such as earnings forecasts or projections. See generally Hiler, The SEC and the Courts’ Approach to Disclosure of Earnings Projections, Asset Appraisals, and Other Soft Information: Old Problems, Changing Views, 46 Md. L. Rev. 1114 (1987). 10 See Staffin v. Greenberg, 672 F. 2d 1196, 1207 (CA3 1982) (defining duty to disclose existence of ongoing merger negotiations as triggered when agreement-in-principle is reached); Greenfield v. Heublein, Inc., 742 F. 2d 751 (CA3 1984) (applying agreement-in-principle test to materiality inquiry), cert, denied, 469 U. S. 1215 (1985). Citing Staffin, the United States Court of Appeals for the Second Circuit has rejected a claim that defendant was under an obligation to disclose various events related to merger negotiations. Reiss v. Pan American World Airways, Inc., BASIC INC. v. LEVINSON 233 224 Opinion of the Court approach, preliminary merger discussions do not become material until “agreement-in-principle” as to the price and structure of the transaction has been reached between the would-be merger partners. See Greenfield v. Heublein, Inc., 742 F. 2d 751, 757 (CA3 1984), cert, denied, 469 U. S. 1215 (1985). By definition, then, information concerning any negotiations not yet at the agreement-in-principle stage could be withheld or even misrepresented without a violation of Rule 10b-5. Three rationales have been offered in support of the “agreement-in-principle” test. The first derives from the concern expressed in TSC Industries that an investor not be overwhelmed by excessively detailed and trivial information, and focuses on the substantial risk that preliminary merger discussions may collapse: because such discussions are inherently tentative, disclosure of their existence itself could mislead investors and foster false optimism. See Greenfield n. Heublein, Inc., 742 F. 2d, at 756; Reiss v. Pan American World Airways, Inc., 711 F. 2d 11, 14 (CA2 1983). The other two justifications for the agreement-in-principle standard are based on management concerns: because the requirement of “agreement-in-principle” limits the scope of disclosure obligations, it helps preserve the confidentiality of merger discussions where earlier disclosure might prejudice the negotiations; and the test also provides a usable, bright-line rule for determining when disclosure must be made. See Greenfield v. Heublein, Inc., 742 F. 2d, at 757; Flamm 711 F. 2d 11, 13-14 (1983). The Seventh Circuit recently endorsed the agreement-in-principle test of materiality. See Flamm v. Eberstadt, 814 F. 2d 1169, 1174-1179 (describing agreement-in-principle as an agreement on price and structure), cert, denied, 484 U. S. 853 (1987). In some of these cases it is unclear whether the court based its decision on a finding that no duty arose to reveal the existence of negotiations, or whether it concluded that the negotiations were immaterial under an interpretation of the opinion in TSC Industries, Inc. n. Northway, Inc., 426 U. S. 438 (1976). 234 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. v. Eberstadt, 814 F. 2d 1169, 1176-1178 (CA7), cert, denied, 484 U. S. 853 (1987). None of these policy-based rationales, however, purports to explain why drawing the line at agreement-in-principle reflects the significance of the information upon the investor’s decision. The first rationale, and the only one connected to the concerns expressed in TSC Industries, stands soundly rejected, even by a Court of Appeals that otherwise has accepted the wisdom of the agreement-in-principle test. "It assumes that investors are nitwits, unable to appreciate— even when told—that mergers are risky propositions up until the closing.” Flamm v. Eberstadt, 814 F. 2d, at 1175. Disclosure, and not paternalistic withholding of accurate information, is the policy chosen and expressed by Congress. We have recognized time and again, a "fundamental purpose” of the various Securities Acts, “was to substitute a philosophy of full disclosure for the philosophy of caveat emptor and thus to achieve a high standard of business ethics in the securities industry.” SEC v. Capital Gains Research Bureau, Inc., 375 U. S., at 186. Accord, Affiliated Ute Citizens v. United States, 406 U. S. 128, 151 (1972); Santa Fe Industries, Inc. n. Green, 430 U. S., at 477. The role of the materiality requirement is not to “attribute to investors a child-like simplicity, an inability to grasp the probabilistic significance of negotiations,” Flamm v. Eberstadt, 814 F. 2d, at 1175, but to filter out essentially useless information that a reasonable investor would not consider significant, even as part of a larger “mix” of factors to consider in making his investment decision. TSC Industries, Inc. v. Northway, Inc., 426 U. S., at 448-449. The second rationale, the importance of secrecy during the early stages of merger discussions, also seems irrelevant to an assessment whether their existence is significant to the trading decision of a reasonable investor. To avoid a “bidding war” over its target, an acquiring firm often will insist that negotiations remain confidential, see, e. g., In re Car BASIC INC. v. LEVINSON 235 224 Opinion of the Court nation Co., Exchange Act Release No. 22214, 33 S. E. C. Docket 1025 (1985), and at least one Court of Appeals has stated that “silence pending settlement of the price and structure of a deal is beneficial to most investors, most of the time.” Flamm v. Eberstadt, 814 F. 2d, at 1177.11 We need not ascertain, however, whether secrecy necessarily maximizes shareholder wealth—although we note that the proposition is at least disputed as a matter of theory and empirical research11 12—for this case does not concern the timing of a disclosure; it concerns only its accuracy and completeness.13 * * * * 18 We face here the narrow question whether information concerning the existence and status of preliminary merger discussions is significant to the reasonable investor’s trading decision. Arguments based on the premise that some disclosure would be “premature” in a sense are more properly considered under the rubric of an issuer’s duty to disclose. The “secrecy” rationale is simply inapposite to the definition of materiality. 11 Reasoning backwards from a goal of economic efficiency, that Court of Appeals stated: “Rule 10b-5 is about fraud, after all, and it is not fraudulent to conduct business in a way that makes investors better off. . . .” 814 F. 2d, at 1177. 12 See, e. g., Brown, Corporate Secrecy, the Federal Securities Laws, and the Disclosure of Ongoing Negotiations, 36 Cath. U. L. Rev. 93, 145-155 (1986); Bebchuk, The Case for Facilitating Competing Tender Of- fers, 95 Harv. L. Rev. 1028 (1982); Flamm n. Eberstadt, 814 F. 2d, at 1177, n. 2 (citing scholarly debate). See also In re Carnation Co., Ex- change Act Release No. 22214, 33 S. E. C. Docket 1025, 1030 (1985) (“The importance of accurate and complete issuer disclosure to the integrity of the securities markets cannot be overemphasized. To the extent that investors cannot rely upon the accuracy and completeness of issuer statements, they will be less likely to invest, thereby reducing the liquidity of the securities markets to the detriment of investors and issuers alike”). 18 See SEC v. Texas Gulf Sulphur Co., 401 F. 2d 833, 862 (CA2 1968) (en banc) (“Rule 10b-5 is violated whenever assertions are made, as here, in a manner reasonably calculated to influence the investing public ... if such assertions are false or misleading or are so incomplete as to mislead . . .”), cert, denied sub nom. Coates v. SEC, 394 U. S. 976 (1969). 236 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. The final justification offered in support of the agreement-in-principle test seems to be directed solely at the comfort of corporate managers. A bright-line rule indeed is easier to follow than a standard that requires the exercise of judgment in the light of all the circumstances. But ease of application alone is not an excuse for ignoring the purposes of the Securities Acts and Congress’ policy decisions. Any approach that designates a single fact or occurrence as always determinative of an inherently fact-specific finding such as materiality, must necessarily be over inclusive or under inclusive. In TSC Industries this Court explained: “The determination [of materiality] requires delicate assessments of the inferences a ‘reasonable shareholder’ would draw from a given set of facts and the significance of those inferences to him . . . .” 426 U. S., at 450. After much study, the Advisory Committee on Corporate Disclosure cautioned the SEC against administratively confining materiality to a rigid formula.14 Courts also would do well to heed this advice. We therefore find no valid justification for artificially excluding from the definition of materiality information concerning merger discussions, which would otherwise be considered significant to the trading decision of a reasonable investor, merely because agreement-in-principle as to price and structure has not yet been reached by the parties or their representatives. 14 * 14 “Although the Committee believes that ideally it would be desirable to have absolute certainty in the application of the materiality concept, it is its view that such a goal is illusory and unrealistic. The materiality concept is judgmental in nature and it is not possible to translate this into a numerical formula. The Committee’s advice to the [SEC] is to avoid this quest for certainty and to continue consideration of materiality on a case-by-case basis as disclosure problems are identified.” House Committee on Interstate and Foreign Commerce, Report of the Advisory Committee on Corporate Disclosure to the Securities and Exchange Commission, 95th Cong., 1st Sess., 327 (Comm. Print 1977). BASIC INC. v. LEVINSON 237 224 Opinion of the Court B The Sixth Circuit explicitly rejected the agreement-in-principle test, as we do today, but in its place adopted a rule that, if taken literally, would be equally insensitive, in our view, to the distinction between materiality and the other elements of an action under Rule 10b-5: “When a company whose stock is publicly traded makes a statement, as Basic did, that ‘no negotiations’ are underway, and that the corporation knows of ‘no reason for the stock’s activity,’ and that ‘management is unaware of any present or pending corporate development that would result in the abnormally heavy trading activity,’ information concerning ongoing acquisition discussions becomes material by virtue of the statement denying their existence. . . . . In analyzing whether information regarding merger discussions is material such that it must be affirmatively disclosed to avoid a violation of Rule 10b-5, the discussions and their progress are the primary considerations. However, once a statement is made denying the existence of any discussions, even discussions that might not have been material in absence of the denial are material because they make the statement made untrue.” 786 F. 2d, at 748-749 (emphasis in original).16 16 Subsequently, the Sixth Circuit denied a petition for rehearing en banc in this case. App. to Pet. for Cert. 144a. Concurring separately, Judge Wellford, one of the original panel members, then explained that he did not read the panel’s opinion to create a “conclusive presumption of materiality for any undisclosed information claimed to render inaccurate statements denying the existence of alleged preliminary merger discussions.” Id., at 145a. In his view, the decision merely reversed the District Court’s judgment, which had been based on the agreement-in-principle standard. Ibid. 238 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. This approach, however, fails to recognize that, in order to prevail on a Rule 10b-5 claim, a plaintiff must show that the statements were misleading as to a material fact. It is not enough that a statement is false or incomplete, if the misrepresented fact is otherwise insignificant. C Even before this Court’s decision in TSC Industries, the Second Circuit had explained the role of the materiality requirement of Rule 10b-5, with respect to contingent or speculative information or events, in a manner that gave that term meaning that is independent of the other provisions of the Rule. Under such circumstances, materiality “will depend at any given time upon a balancing of both the indicated probability that the event will occur and the anticipated magnitude of the event in light of the totality of the company activity.” SEC v. Texas Gulf Sulphur Co., 401 F. 2d, at 849. Interestingly, neither the Third Circuit decision adopting the agreement-in-principle test nor petitioners here take issue with this general standard. Rather, they suggest that with respect to preliminary merger discussions, there are good reasons to draw a line at agreement on price and structure. In a subsequent decision, the late Judge Friendly, writing for a Second Circuit panel, applied the Texas Gulf Sulphur probability/magnitude approach in the specific context of preliminary merger negotiations. After acknowledging that materiality is something to be determined on the basis of the particular facts of each case, he stated: “Since a merger in which it is bought out is the most important event that can occur in a small corporation’s life, to wit, its death, we think that inside information, as regards a merger of this sort, can become material at an earlier stage than would be the case as regards lesser transactions—and this even though the mortality rate of mergers in such formative stages is doubtless high.” SEC v. Geon Industries, Inc., 531 F. 2d 39, 47-48 (1976). BASIC INC. v. LEVINSON 239 224 Opinion of the Court We agree with that analysis.16 Whether merger discussions in any particular case are material therefore depends on the facts. Generally, in order to assess the probability that the event will occur, a factfinder will need to look to indicia of interest in the transaction at the highest corporate levels. Without attempting to catalog all such possible factors, we note by way of example that board resolutions, instructions to investment bankers, and actual negotiations between principals or their intermediaries may serve as indicia of interest. To assess the magnitude of the transaction to the issuer of the securities allegedly manipulated, a factfinder will need to consider such facts as the size of the two corporate entities and of the potential premiums over market value. No particular event or factor short of closing the transaction need be either necessary or sufficient by itself to render merger discussions material.17 16 The SEC in the present case endorses the highly fact-dependent probability/magnitude balancing approach of Texas Gulf Sulphur. It explains: “The possibility of a merger may have an immediate importance to investors in the company’s securities even if no merger ultimately takes place.” Brief for SEC as Amicus Curiae 10. The SEC’s insights are helpful, and we accord them due deference. See TSC Industries, Inc. v. Northway, Inc., 426 U. S., at 449, n. 10. 17 To be actionable, of course, a statement must also be misleading. Silence, absent a duty to disclose, is not misleading under Rule 10b-5. “No comment” statements are generally the functional equivalent of silence. See In re Carnation Co., Exchange Act Release No. 22214, 33 S. E. C. Docket 1025 (1985). See also New York Stock Exchange Listed Company Manual §202.01, reprinted in 3 CCH Fed. Sec. L. Rep. 1123,515 (1987) (premature public announcement may properly be delayed for valid business purpose and where adequate security can be maintained); American Stock Exchange Company Guide §§ 401-405, reprinted in 3 CCH Fed. Sec. L. Rep. HU23,124A-23,124E (1985) (similar provisions). It has been suggested that given current market practices, a “no comment” statement is tantamount to an admission that merger discussions are underway. See Flamm v. Eberstadt, 814 F. 2d, at 1178. That may well hold true to the extent that issuers adopt a policy of truthfully denying merger rumors when no discussions are underway, and of issuing “no comment” statements when they are in the midst of negotiations. There 240 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. As we clarify today, materiality depends on the significance the reasonable investor would place on the withheld or misrepresented information.* 18 The fact-specific inquiry we endorse here is consistent with the approach a number of courts have taken in assessing the materiality of merger negotiations.19 Because the standard of materiality we have are, of course, other statement policies firms could adopt; we need not now advise issuers as to what kind of practice to follow, within the range permitted by law. Perhaps more importantly, we think that creating an exception to a regulatory scheme founded on a prodisclosure legislative philosophy, because complying with the regulation might be “bad for business,” is a role for Congress, not this Court. See also id., at 1182 (opinion concurring in judgment and concurring in part). 18 We find no authority in the statute, the legislative history, or our previous decisions for varying the standard of materiality depending on who brings the action or whether insiders are alleged to have profited. See, e. g., Pavlidis v. New England Patriots Football Club, Inc., 737 F. 2d 1227, 1231 (CAI 1984) (“A fact does not become more material to the shareholder’s decision because it is withheld by an insider, or because the insider might profit by withholding it”); cf. Aaron v. SEC, 446 U. S. 680, 691 (1980) (“[S]cienter is an element of a violation of § 10(b) and Rule 10b-5, regardless of the identity of the plaintiff or the nature of the relief sought”). We recognize that trading (and profit making) by insiders can serve as an indication of materiality, see SEC v. Texas Gulf Sulphur Co., 401 F. 2d, at 851; General Portland, Inc. v. LaFarge Coppee S. A., [1982-1983] CCH Fed. Sec. L. Rep. 5199,148, p. 95,544 (ND Tex. 1981). We are not prepared to agree, however, that “[i]n cases of the disclosure of inside information to a favored few, determination of materiality has a different aspect than when the issue is, for example, an inaccuracy in a publicly disseminated press release.” SEC v. Geon Industries, Inc., 531 F. 2d 39, 48 (CA2 1976). Devising two different standards of materiality, one for situations where insiders have traded in abrogation of their duty to disclose or abstain (or for that matter when any disclosure duty has been breached), and another covering affirmative misrepresentations by those under no duty to disclose (but under the ever-present duty not to mislead), would effectively collapse the materiality requirement into the analysis of defendant’s disclosure duties. 19 See, e. g., SEC v. Shapiro, 494 F. 2d 1301, 1306-1307 (CA2 1974) (in light of projected very substantial increase in earnings per share, negotiations material, although merger still less than probable); Holmes v. Bate- BASIC INC. v. LEVINSON 241 224 Opinion of the Court adopted differs from that used by both courts below, we remand the case for reconsideration of the question whether a grant of summary judgment is appropriate on this record.20 IV A We turn to the question of reliance and the fraud-on-the-market theory. Succinctly put: “The fraud on the market theory is based on the hypothesis that, in an open and developed securities market, the price of a company’s stock is determined by the available material information regarding the company and its business. . . . Misleading statements will there son, 583 F. 2d 542, 558 (CAI 1978) (merger negotiations material although they had not yet reached point of discussing terms); SEC v. Gaspar, [1984-1985] CCH Fed. Sec. L. Rep. 1192,004, pp. 90,977-90,978 (SDNY 1985) (merger negotiations material although they did not proceed to actual tender offer); Dungan n. Colt Industries, Inc., 532 F. Supp. 832, 837 (ND Ill. 1982) (fact that defendants were seriously exploring the sale of their company was material); American General Ins. Co. v. Equitable General Corp., 493 F. Supp. 721, 744-745 (ED Va. 1980) (merger negotiations material four months before agreement-in-principle reached). Cf. Susquehanna Corp. v. Pan American Sulphur Co., 423 F. 2d 1075, 1084-1085 (CA5 1970) (holding immaterial “unilateral offer to negotiate” never acknowledged by target and repudiated two days later); Berman n. Gerber Products Co., 454 F. Supp. 1310, 1316, 1318 (WD Mich. 1978) (mere “overtures” immaterial). 20 The Sixth Circuit rejected the District Court’s narrow reading of Basic’s “no developments” statement, see n. 4, supra, which focused on whether petitioners knew of any reason for the activity in Basic stock, that is, whether petitioners were aware of leaks concerning ongoing discussions. 786 F. 2d, at 747. See also Comment, Disclosure of Preliminary Merger Negotiations Under Rule 10b-5, 62 Wash. L. Rev. 81, 82-84 (1987) (noting prevalence of leaks and studies demonstrating that substantial trading activity immediately preceding merger announcements is the “rule, not the exception”). We accept the Court of Appeals’ reading of the statement as the more natural one, emphasizing management’s knowledge of developments (as opposed to leaks) that would explain unusual trading activity. See id., at 92-93; see also SEC v. Texas Gulf Sulphur Co., 401 F. 2d, at 862-863. 242 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. fore defraud purchasers of stock even if the purchasers do not directly rely on the misstatements. . . . The causal connection between the defendants’ fraud and the plaintiffs’ purchase of stock in such a case is no less significant than in a case of direct reliance on misrepresentations.” Peil v. Speiser, 806 F. 2d 1154, 1160-1161 (CA3 1986). Our task, of course, is not to assess the general validity of the theory, but to consider whether it was proper for the courts below to apply a rebuttable presumption of reliance, supported in part by the fraud-on-the-market theory. Cf. the comments of the dissent, post, at 252-255. This case required resolution of several common questions of law and fact concerning the falsity or misleading nature of the three public statements made by Basic, the presence or absence of scienter, and the materiality of the misrepresentations, if any. In their amended complaint, the named plaintiffs alleged that in reliance on Basic’s statements they sold their shares of Basic stock in the depressed market created by petitioners. See Amended Complaint in No. C79-1220 (ND Ohio), 1H[27, 29, 35, 40; see also id., 1133 (alleging effect on market price of Basic’s statements). Requiring proof of individualized reliance from each member of the proposed plaintiff class effectively would have prevented respondents from proceeding with a class action, since individual issues then would have overwhelmed the common ones. The District Court found that the presumption of reliance created by the fraud-on-the-market theory provided “a practical resolution to the problem of balancing the substantive requirement of proof of reliance in securities cases against the procedural requisites of [Federal Rule of Civil Procedure] 23.” The District Court thus concluded that with reference to each public statement and its impact upon the open market for Basic shares, common questions predominated over individual questions, as required by Federal Rules of Civil Procedure 23(a)(2) and (b)(3). BASIC INC. v. LEVINSON 243 224 Opinion of the Court Petitioners and their amici complain that the fraud-on-the-market theory effectively eliminates the requirement that a plaintiff asserting a claim under Rule 10b-5 prove reliance. They note that reliance is and long has been an element of common-law fraud, see, e. g., Restatement (Second) of Torts §525 (1977); W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 108 (5th ed. 1984), and argue that because the analogous express right of action includes a reliance requirement, see, e. g., § 18(a) of the 1934 Act, as amended, 15 U. S. C. § 78r(a), so too must an action implied under § 10(b). We agree that reliance is an element of a Rule 10b-5 cause of action. See Ernst & Ernst v. Hochfelder, 425 U. S., at 206 (quoting Senate Report). Reliance provides the requisite causal connection between a defendant’s misrepresentation and a plaintiff’s injury. See, e. g., Wilson v. Comtech Telecommunications Corp., 648 F. 2d 88, 92 (CA2 1981); List n. Fashion Park, Inc., 340 F. 2d 457, 462 (CA2), cert, denied sub nom. List v. Lerner, 382 U. S. 811 (1965). There is, however, more than one way to demonstrate the causal connection. Indeed, we previously have dispensed with a requirement of positive proof of reliance, where a duty to disclose material information had been breached, concluding that the necessary nexus between the plaintiffs’ injury and the defendant’s wrongful conduct had been established. See Affiliated Ute Citizens v. United States, 406 U. S., at 153-154. Similarly, we did not require proof that material omissions or misstatements in a proxy statement decisively affected voting, because the proxy solicitation itself, rather than the defect in the solicitation materials, served as an essential link in the transaction. See Mills v. Electric Auto-Lite Co., 396 U. S. 375, 384-385 (1970). The modern securities markets, literally involving millions of shares changing hands daily, differ from the face-to-face 244 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. transactions contemplated by early fraud cases,21 and our understanding of Rule 10b-5’s reliance requirement must encompass these differences.22 “In face-to-face transactions, the inquiry into an investor’s reliance upon information is into the subjective pricing of that information by that investor. With the presence of a market, the market is interposed between seller and buyer and, ideally, transmits information to the investor in the processed form of a market price. Thus the market is performing a substantial part of the valuation process performed by the investor in a face-to-face transaction. The market is acting as the unpaid agent of the investor, informing him that given all the information available to it, the value of the stock is worth the market price.” In re LTV Securities Litigation, 88 F. R. D. 134, 143 (ND Tex. 1980). Accord, e. g., Peil v. Speiser, 806 F. 2d, at 1161 (“In an open and developed market, the dissemination of material misrepresentations or withholding of material information typically affects the price of the stock, and purchasers generally rely on the price of the stock as a reflection of its value”); Blackie 21W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 726 (5th ed. 1984) (“The reasons for the separate development of [the tort action for misrepresentation and nondisclosure], and for its peculiar limitations, are in part historical, and in part connected with the fact that in the great majority of the cases which have come before the courts the misrepresentations have been made in the course of a bargaining transaction between the parties. Consequently the action has been colored to a considerable extent by the ethics of bargaining between distrustful adversaries”) (footnote omitted). 22 Actions under Rule 10b-5 are distinct from common-law deceit and misrepresentation claims, see Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 744-745 (1975), and are in part designed to add to the protections provided investors by the common law, see Herman & MacLean v. Huddleston, 459 U. S. 375, 388-389 (1983). BASIC INC. v. LEVINSON 245 224 Opinion of the Court v. Barrack, 524 F. 2d 891, 908 (CA9 1975) (“[T]he same causal nexus can be adequately established indirectly, by proof of materiality coupled with the common sense that a stock purchaser does not ordinarily seek to purchase a loss in the form of artificially inflated stock”), cert, denied, 429 U. S. 816 (1976). B Presumptions typically serve to assist courts in managing circumstances in which direct proof, for one reason or another, is rendered difficult. See, e. g., 1 D. Louisell & C. Mueller, Federal Evidence 541-542 (1977). The courts below accepted a presumption, created by the fraud-on-the-market theory and subject to rebuttal by petitioners, that persons who had traded Basic shares had done so in reliance on the integrity of the price set by the market, but because of petitioners’ material misrepresentations that price had been fraudulently depressed. Requiring a plaintiff to show a speculative state of facts, i. e., how he would have acted if omitted material information had been disclosed, see Affiliated Ute Citizens v. United States, 406 U. S., at 153-154, or if the misrepresentation had not been made, see Sharp n. Coopers & Lybrand, 649 F. 2d 175, 188 (CA3 1981), cert, denied, 455 U. S. 938 (1982), would place an unnecessarily unrealistic evidentiary burden on the Rule 10b-5 plaintiff who has traded on an impersonal market. Cf. Mills v. Electric Auto-Lite Co., 396 U. S., at 385. Arising out of considerations of fairness, public policy, and probability, as well as judicial economy, presumptions are also useful devices for allocating the burdens of proof between parties. See E. Cleary, McCormick on Evidence 968-969 (3d ed. 1984); see also Fed. Rule Evid. 301 and Advisory Committee Notes, 28 U. S. C. App., p. 685. The presumption of reliance employed in this case is consistent with, and, by facilitating Rule 10b-5 litigation, supports, the congressional policy embodied in the 1934 Act. In drafting that Act, 246 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. Congress expressly relied on the premise that securities markets are affected by information, and enacted legislation to facilitate an investor’s reliance on the integrity of those markets: “No investor, no speculator, can safely buy and sell securities upon the exchanges without having an intelligent basis for forming his judgment as to the value of the securities he buys or sells. The idea of a free and open public market is built upon the theory that competing judgments of buyers and sellers as to the fair price of a security brings [sic] about a situation where the market price reflects as nearly as possible a just price. Just as artificial manipulation tends to upset the true function of an open market, so the hiding and secreting of important information obstructs the operation of the markets as indices of real value.” H. R. Rep. No. 1383, at 11. See Lipton n. Documation, Inc., 734 F. 2d 740, 748 (CA11 1984), cert, denied, 469 U. S. 1132 (1985).23 The presumption is also supported by common sense and probability. Recent empirical studies have tended to confirm Congress’ premise that the market price of shares traded on well-developed markets reflects all publicly available information, and, hence, any material misrepresentations.24 25 It has been noted that “it is hard to imagine that 23 Contrary to the dissent’s suggestion, the incentive for investors to “pay attention” to issuers’ disclosures conies from their motivation to make a profit, not their attempt to preserve a cause of action under Rule 10b-5. Facilitating an investor’s reliance on the market, consistently with Congress’ expectations, hardly calls for “dismantling the federal scheme which mandates disclosure.” See post, at 259. 24 See In re LTV Securities Litigation, 88 F. R. D. 134, 144 (ND Tex. 1980) (citing studies); Fischel, Use of Modem Finance Theory in Securities Fraud Cases Involving Actively Traded Securities, 38 Bus. Law. 1, 4, n. 9 (1982) (citing literature on efficient-capital-market theory); Dennis, Materiality and the Efficient Capital Market Model: A Recipe for the Total Mix, 25 Wm. & Mary L. Rev. 373, 374-381, and n. 1 (1984). We need not determine by adjudication what economists and social scientists have debated BASIC INC. v. LEVINSON 247 224 Opinion of the Court there ever is a buyer or seller who does not rely on market integrity. Who would knowingly roll the dice in a crooked crap game?” Schlanger v. Four-Phase Systems Inc., 555 F. Supp. 535, 538 (SDNY 1982). Indeed, nearly every court that has considered the proposition has concluded that where materially misleading statements have been disseminated into an impersonal, well-developed market for securities, the reliance of individual plaintiffs on the integrity of the market price may be presumed.25 Commentators generally have applauded the adoption of one variation or another of the fraud-on-the-market theory.26 An investor who buys or sells stock at the price set by the market does so in reliance on the integrity of that price. Because most publicly available information is reflected in market price, an investor’s reliance on any public material misrepresentations, therefore, may be presumed for purposes of a Rule 10b-5 action. through the use of sophisticated statistical analysis and the application of economic theory. For purposes of accepting the presumption of reliance in this case, we need only believe that market professionals generally consider most publicly announced material statements about companies, thereby affecting stock market prices. 26 See, e. g., Peil v. Speiser, 806 F. 2d 1154, 1161 (CA3 1986); Harris v. Union Electric Co., 787 F. 2d 355, 367, and n. 9 (CA8), cert, denied, 479 U. S. 823 (1986); Lipton v. Documation, Inc., 734 F. 2d 740 (CA11 1984), cert, denied, 469 U. S. 1132 (1985); T. J. Raney & Sons, Inc. v. Fort Cobb, Oklahoma Irrigation Fuel Authority, 717 F. 2d 1330, 1332-1333 (CAIO 1983), cert, denied sub nom. Linde, Thomson, Fairchild, Langworthy, Kohn & Van Dyke v. T. J. Raney & Sons, Inc., 465 U. S. 1026 (1984); Panzirer v. Wolf, 663 F. 2d 365, 367-368 (CA2 1981), vacated and remanded sub nom. Price Waterhouse v. Panzirer, 459 U. S. 1027 (1982); Ross v. A. H. Robins Co., 607 F. 2d 545, 553 (CA2 1979), cert, denied, 446 U. S. 946 (1980); Blackie v. Barrack, 524 F. 2d 891, 905-908 (CA9 1975), cert, denied, 429 U. S. 816 (1976). “See, e. g., Black, Fraud on the Market: A Criticism of Dispensing with Reliance Requirements in Certain Open Market Transactions, 62 N. C. L. Rev. 435 (1984); Note, The Fraud-on-the-Market Theory, 95 Harv. L. Rev. 1143 (1982); Note, Fraud on the Market: An Emerging Theory of Recovery Under SEC Rule 10b-5, 50 Geo. Wash. L. Rev. 627 (1982). 248 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. c The Court of Appeals found that petitioners “made public, material misrepresentations and [respondents] sold Basic stock in an impersonal, efficient market. Thus the class, as defined by the district court, has established the threshold facts for proving their loss.” 786 F. 2d, at 751.27 The court acknowledged that petitioners may rebut proof of the elements giving rise to the presumption, or show that the misrepresentation in fact did not lead to a distortion of price or that an individual plaintiff traded or would have traded despite his knowing the statement was false. Id., at 750, n. 6. Any showing that severs the link between the alleged misrepresentation and either the price received (or paid) by the plaintiff, or his decision to trade at a fair market price, will be sufficient to rebut the presumption of reliance. For example, if petitioners could show that the “market makers” were privy to the truth about the merger discussions here with Combustion, and thus that the market price would not have been affected by their misrepresentations, the causal connection could be broken: the basis for finding that the fraud had been transmitted through market price would be gone.28 Similarly, if, despite petitioners’ allegedly fraudulent at 27 The Court of Appeals held that in order to invoke the presumption, a plaintiff must allege and prove: (1) that the defendant made public misrepresentations; (2) that the misrepresentations were material; (3) that the shares were traded on an efficient market; (4) that the misrepresentations would induce a reasonable, relying investor to misjudge the value of the shares; and (5) that the plaintiff traded the shares between the time the misrepresentations were made and the time the truth was revealed. See 786 F. 2d, at 750. Given today’s decision regarding the definition of materiality as to preliminary merger discussions, elements (2) and (4) may collapse into one. 28 By accepting this rebuttable presumption, we do not intend conclusively to adopt any particular theory of how quickly and completely publicly available information is reflected in market price. Furthermore, our decision today is not to be interpreted as addressing the proper measure of damages in litigation of this kind. BASIC INC. v. LEVINSON 249 224 Opinion of the Court tempt to manipulate market price, news of the merger discussions credibly entered the market and dissipated the effects of the misstatements, those who traded Basic shares after the corrective statements would have no direct or indirect connection with the fraud.29 Petitioners also could rebut the presumption of reliance as to plaintiffs who would have divested themselves of their Basic shares without relying on the integrity of the market. For example, a plaintiff who believed that Basic’s statements were false and that Basic was indeed engaged in merger discussions, and who consequently believed that Basic stock was artificially underpriced, but sold his shares nevertheless because of other unrelated concerns, e. g., potential antitrust problems, or political pressures to divest from shares of certain businesses, could not be said to have relied on the integrity of a price he knew had been manipulated. V In summary: 1. We specifically adopt, for the § 10(b) and Rule 10b-5 context, the standard of materiality set forth in TSC Industries, Inc. v. Northway, Inc., 426 U. S., at 449. 2. We reject “agreement-in-principle as to price and structure” as the bright-line rule for materiality. 3. We also reject the proposition that “information becomes material by virtue of a public statement denying it.” 29 We note there may be a certain incongruity between the assumption that Basic shares are traded on a well-developed, efficient, and information-hungry market, and the allegation that such a market could remain misinformed, and its valuation of Basic shares depressed, for 14 months, on the basis of the three public statements. Proof of that sort is a matter for trial, throughout which the District Court retains the authority to amend the certification order as may be appropriate. See Fed. Rules Civ. Proc. 23(c)(1) and (c)(4). See 7B C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure 128-132 (1986). Thus, we see no need to engage in the kind of factual analysis the dissent suggests that manifests the “oddities” of applying a rebuttable presumption of reliance in this case. See post, at 259-263. 250 OCTOBER TERM, 1987 Opinion of White, J. 485 U. S. 4. Materiality in the merger context depends on the probability that the transaction will be consummated, and its significance to the issuer of the securities. Materiality depends on the facts and thus is to be determined on a case-by-case basis. 5. It is not inappropriate to apply a presumption of reliance supported by the fraud-on-the-market theory. 6. That presumption, however, is rebuttable. 7. The District Court’s certification of the class here was appropriate when made but is subject on remand to such adjustment, if any, as developing circumstances demand. The judgment of the Court of Appeals is vacated, and the case is remanded to that court for further proceedings consistent with this opinion. It is so ordered. The Chief Justice, Justice Scalia, and Justice Kennedy took no part in the consideration or decision of this case. Justice White, with whom Justice O’Connor joins, concurring in part and dissenting in part. I join Parts I—III of the Court’s opinion, as I agree that the standard of materiality we set forth in TSC Industries, Inc. v. Northway, Inc., 426 U. S. 438, 449 (1976), should be applied to actions under § 10(b) and Rule 10b-5. But I dissent from the remainder of the Court’s holding because I do not agree that the “fraud-on-the-market” theory should be applied in this case. I Even when compared to the relatively youthful private cause-of-action under § 10(b), see Kardon v. National Gypsum Co., 69 F. Supp. 512 (ED Pa. 1946), the fraud-on-the-market theory is a mere babe.1 Yet today, the Court em- ^he earliest Court of Appeals case adopting this theory cited by the Court is Blackie v. Barrack, 524 F. 2d 891 (CA9 1975), cert, denied, 429 U. S. 816 (1976). Moreover, widespread acceptance of the fraud-on-the- BASIC INC. v. LEVINSON 251 224 Opinion of White, J. braces this theory with the sweeping confidence usually reserved for more mature legal doctrines. In so doing, I fear that the Court’s decision may have many adverse, unintended effects as it is applied and interpreted in the years to come. A At the outset, I note that there are portions of the Court’s fraud-on-the-market holding with which I am in agreement. Most importantly, the Court rejects the version of that theory, heretofore adopted by some courts,* 2 which equates “causation” with “reliance,” and permits recovery by a plaintiff who claims merely to have been harmed by a material misrepresentation which altered a market price, notwithstanding proof that the plaintiff did not in any way rely on that price. Ante, at 248. I agree with the Court that if Rule 10b-5’s reliance requirement is to be left with any content at all, the fraud-on-the-market presumption must be capable of being rebutted by a showing that a plaintiff did not “rely” on the market price. For example, a plaintiff who decides, months in advance of an alleged misrepresentation, to purchase a stock; one who buys or sells a stock for reasons unrelated to its price; one who actually sells a stock “short” days before the misrepresentation is made—surely none of these people can state a valid claim under Rule 10b-5. Yet, some federal courts have allowed such claims to stand under one variety or another of the fraud-on-the-market theory.3 market theory in the Courts of Appeals cannot be placed any earlier than five or six years ago. See ante, at 246-247, n. 24; Brief for Securities and Exchange Commission as Amicus Curiae 21, n. 24. 2See, e. g., Zweig v. Hearst Corp., 594 F. 2d 1261, 1268-1271 (CA9 1979); Arthur Young & Co. v. United States District Court, 549 F. 2d 686, 694-695 (CA9), cert, denied, 434 U. S. 829 (1977); Pellman v. Cinerama, Inc., 89 F. R. D. 386, 388 (SDNY 1981). 3 Cases illustrating these factual situations are, respectively, Zweig v. Hearst Corp., supra, at 1271 (Ely, J., dissenting); Abrams v. Johns-Manville Corp., [1981-1982] CCH Fed. Sec. L. Rep. 1198,348, p. 92,157 252 OCTOBER TERM, 1987 Opinion of White, J. 485 U. S. Happily, the majority puts to rest the prospect of recovery under such circumstances. A nonrebuttable presumption of reliance—or even worse, allowing recovery in the face of “affirmative evidence of nonreliance,” Zweig n. Hearst Corp., 594 F. 2d 1261, 1272 (CA9 1979) (Ely, J., dissenting)-would effectively convert Rule 10b-5 into “a scheme of investor’s insurance.” Shores v. Sklar, 647 F. 2d 462, 469, n. 5 (CA5 1981) (en banc), cert, denied, 459 U. S. 1102 (1983). There is no support in the Securities Exchange Act, the Rule, or our cases for such a result. B But even as the Court attempts to limit the fraud-on-the-market theory it endorses today, the pitfalls in its approach are revealed by previous uses by the lower courts of the broader versions of the theory. Confusion and contradiction in court rulings are inevitable when traditional legal analysis is replaced with economic theorization by the federal courts. (SDNY 1981); Fausett v. American Resources Management Corp., 542 F. Supp. 1234, 1238-1239 (Utah 1982). The Abrams decision illustrates the particular pliability of the fraud-on-the-market presumption. In Abrams, the plaintiff represented a class of purchasers of defendant’s stock who were allegedly misled by defendant’s misrepresentations in annual reports. But in a deposition taken shortly after the plaintiff filed suit, she testified that she had bought defendant’s stock primarily because she thought that favorable changes in the Federal Tax Code would boost sales of its product (insulation). Two years later, after the defendant moved for summary judgment based on the plaintiff’s failure to prove reliance on the alleged misrepresentations, the plaintiff resuscitated her case by executing an affidavit which stated that she “certainly [had] assumed that the market price of Johns-Manville stock was an accurate reflection of the worth of the company” and would not have paid the then-going price if she had known otherwise. Abrams, supra, at 92,157. Based on this affidavit, the District Court permitted the plaintiff to proceed on her fraud-on-the-market theory. Thus, Abrams demonstrates how easily a post hoc statement will enable a plaintiff to bring a fraud-on-the-market action—even in the rare case where a plaintiff is frank or foolhardy enough to admit initially that a factor other than price led her to the decision to purchase a particular stock. BASIC INC. v. LEVINSON 253 224 Opinion of White, J. In general, the case law developed in this Court with respect to § 10(b) and Rule 10b-5 has been based on doctrines with which we, as judges, are familiar: common-law doctrines of fraud and deceit. See, e. g., Santa Fe Industries, Inc. v. Green, 430 U. S. 462, 471-477 (1977). Even when we have extended civil liability under Rule 10b-5 to a broader reach than the common law had previously permitted, see ante, at 244, n. 22, we have retained familiar legal principles as our guideposts. See, e. g., Herman & MacLean v. Huddleston, 459 U. S. 375, 389-390 (1983). The federal courts have proved adept at developing an evolving jurisprudence of Rule 10b-5 in such a manner. But with no staff economists, no experts schooled in the “efficient-capital-market hypothesis,” no ability to test the validity of empirical market studies, we are not well equipped to embrace novel constructions of a statute based on contemporary microeconomic theory.4 The “wrong turns” in those Court of Appeals and District Court fraud-on-the-market decisions which the Court implicitly rejects as going too far should be ample illustration of the dangers when economic theories replace legal rules as the basis for recovery. Yet the Court today ventures into this area beyond its expertise, beyond—by its own admission— the confines of our previous fraud cases. See ante, at 243-244. Even if I agreed with the Court that “modern securi 4 This view was put well by two commentators who wrote a few years ago: “Of all recent developments in financial economics, the efficient capital market hypothesis (‘ECMH’) has achieved the widest acceptance by the legal culture. . . . “Yet the legal culture’s remarkably rapid and broad acceptance of an economic concept that did not exist twenty years ago is not matched by an equivalent degree of understanding.” Gilson & Kraakman, The Mechanisms of Market Efficiency, 70 Va. L. Rev. 549, 549-550 (1984) (footnotes omitted; emphasis added). While the fraud-on-the-market theory has gained even broader acceptance since 1984, I doubt that it has achieved any greater understanding. 254 OCTOBER TERM, 1987 Opinion of White, J. 485 U. S. ties markets . . . involving millions of shares changing hands daily” require that the “understanding of Rule 10b-5’s reliance requirement” be changed, ibid., I prefer that such changes come from Congress in amending § 10(b). The Congress, with its superior resources and expertise, is far better equipped than the federal courts for the task of determining how modern economic theory and global financial markets require that established legal notions of fraud be modified. In choosing to make these decisions itself, the Court, I fear, embarks on a course that it does not genuinely understand, giving rise to consequences it cannot foresee.5 For while the economists’ theories which underpin the fraud-on-the-market presumption may have the appeal of mathematical exactitude and scientific certainty, they are— in the end—nothing more than theories which may or may not prove accurate upon further consideration. Even the most earnest advocates of economic analysis of the law recognize this. See, e. g., Easterbrook, Afterword: Knowledge and Answers, 85 Colum. L. Rev. 1117, 1118 (1985). Thus, while the majority states that, for purposes of reaching its result it need only make modest assumptions about the way in which “market professionals generally” do their jobs, and how the conduct of market professionals affects stock prices, ante, at 246, n. 23, I doubt that we are in much of a position 5 For example, Judge Posner in his Economic Analysis of Law §15.8, pp. 423-424 (3d ed. 1986), submits that the fraud-on-the-market theory produces the “economically correct result” in Rule 10b-5 cases but observes that the question of damages under the theory is quite problematic. Notwithstanding the fact that “[a]t first blush it might seem obvious,” the proper calculation of damages when the fraud-on-the-market theory is applied must rest on several “assumptions” about “social costs” which are “difficult to quantify.” Ibid. Of course, answers to the question of the proper measure of damages in a fraud-on-the-market case are essential for proper implementation of the fraud-on-the-market presumption. Not surprisingly, the difficult damages question is one the Court expressly declines to address today. Ante, at 248, n. 27. BASIC INC. v. LEVINSON 255 224 Opinion of White, J. to assess which theories aptly describe the functioning of the securities industry. Consequently, I cannot join the Court in its effort to reconfigure the securities laws, based on recent economic theories, to better fit what it perceives to be the new realities of financial markets. I would leave this task to others more equipped for the job than we. C At the bottom of the Court’s conclusion that the fraud-on-the-market theory sustains a presumption of reliance is the assumption that individuals rely “on the integrity of the market price” when buying or selling stock in “impersonal, well-developed market[s] for securities.” Ante, at 247. Even if I was prepared to accept (as a matter of common sense or general understanding) the assumption that most persons buying or selling stock do so in response to the market price, the fraud-on-the-market theory goes further. For in adopting a “presumption of reliance,” the Court also assumes that buyers and sellers rely—not just on the market price—but on the “integrity” of that price. It is this aspect of the fraud-on-the-market hypothesis which most mystifies me. To define the term “integrity of the market price,” the majority quotes approvingly from cases which suggest that investors are entitled to “ ‘rely on the price of a stock as a reflection of its value.’” Ante, at 244 (quoting Peil v. Speiser, 806 F. 2d 1154, 1161 (CA3 1986)). But the meaning of this phrase eludes me, for it implicitly suggests that stocks have some “true value” that is measurable by a standard other than their market price. While the scholastics of medieval times professed a means to make such a valuation of a commodity’s “worth,”61 doubt that the federal courts of our day are similarly equipped. 6 See E. Salin, Just Price, 8 Encyclopaedia of Social Sciences 504-506 (1932); see also R. de Roover, Economic Thought: Ancient and Medieval Thought, 4 International Encyclopedia of Social Sciences 433-435 (1968). 256 OCTOBER TERM, 1987 Opinion of White, J. 485 U. S. Even if securities had some “value”—knowable and distinct from the market price of a stock—investors do not always share the Court’s presumption that a stock’s price is a “reflection of [this] value.” Indeed, “many investors purchase or sell stock because they believe the price inaccurately reflects the corporation’s worth.” See Black, Fraud on the Market: A Criticism of Dispensing with Reliance Requirements in Certain Open Market Transactions, 62 N. C. L. Rev. 435, 455 (1984) (emphasis added). If investors really believed that stock prices reflected a stock’s “value,” many sellers would never sell, and many buyers never buy (given the time and cost associated with executing a stock transaction). As we recognized just a few years ago: “[investors act on inevitably incomplete or inaccurate information, [consequently] there are always winners and losers; but those who have ‘lost’ have not necessarily been defrauded.” Dirks v. SEC, 463 U. S. 646, 667, n. 27 (1983). Yet today, the Court allows investors to recover who can show little more than that they sold stock at a lower price than what might have been.7 I do not propose that the law retreat from the many protections that § 10(b) and Rule 10b-5, as interpreted in our prior cases, provide to investors. But any extension of these laws, to approach something closer to an investor in 7 This is what the Court’s rule boils down to in practical terms. For while, in theory, the Court allows for rebuttal of its “presumption of reliance”—a proviso with which I agree, see supra, at 251—in practice the Court must realize, as other courts applying the fraud-on-the-market theory have, that such rebuttal is virtually impossible in all but the most extraordinary case. See Blackie v. Barrack, 524 F. 2d, at 906-907, n. 22; In re LTV Securities Litigation, 88 F. R. D. 134, 143, n. 4 (ND Tex. 1980). Consequently, while the Court considers it significant that the fraud-on-the-market presumption it endorses is a rebuttable one, ante, at 242, 248, the majority’s implicit rejection of the “pure causation” fraud-on-the-market theory rings hollow. In most cases, the Court’s theory will operate just as the causation theory would, creating a nonrebuttable presumption of “reliance” in future Rule 10b-5 actions. BASIC INC. v. LEVINSON 257 224 Opinion of White, J. surance scheme, should come from Congress, and not from the courts. II Congress has not passed on the fraud-on-the-market theory the Court embraces today. That is reason enough for us to abstain from doing so. But it is even more troubling that, to the extent that any view of Congress on this question can be inferred indirectly, it is contrary to the result the majority reaches. A In the past, the scant legislative history of § 10(b) has led us to look at Congress’ intent in adopting other portions of the Securities Exchange Act when we endeavor to discern the limits of private causes of action under Rule 10b-5. See, e. g., Ernst & Ernst v. Hochfelder, 425 U. S. 185, 204-206 (1976). A similar undertaking here reveals that Congress flatly rejected a proposition analogous to the fraud-on-the-market theory in adopting a civil liability provision of the 1934 Act. Section 18 of the Act expressly provides for civil liability for certain misleading statements concerning securities. See 15 U. S. C. §78r(a). When the predecessor of this section was first being considered by Congress, the initial draft of the provision allowed recovery by any plaintiff “who shall have purchased or sold a security the price of which may have been affected by such [misleading] statement.” See S. 2693, 73d Cong., 2d Sess., § 17(a) (1934). Thus, as initially drafted, the precursor to the express civil liability provision of the 1934 Act would have permitted suits by plaintiffs based solely on the fact that the price of the securities they bought or sold was affected by a misrepresentation: a theory closely akin to the Court’s holding today. Yet this provision was roundly criticized in congressional hearings on the proposed Securities Exchange Act, because it failed to include a more substantial “reliance” require 258 OCTOBER TERM, 1987 Opinion of White, J. 485 U. S. ment.8 Subsequent drafts modified the original proposal, and included an express reliance requirement in the final version of the Act. In congressional debates over the redrafted version of this bill, the then-Chairman of the House Committee, Representative Sam Rayburn, explained that the “bill as originally written was very much challenged on the ground that reliance should be required. This objection has been met.” 78 Cong. Rec. 7701 (1934). Moreover, in a previous case concerning the scope of § 10(b) and Rule 10b-5, we quoted approvingly from the legislative history of this revised provision, which emphasized the presence of a strict reliance requirement as a prerequisite for recovery. See Ernst & Ernst n. Hochfelder, supra, at 206 (citing S. Rep. No. 792, 73d Cong., 2d Sess., 12-13 (1934)). Congress thus anticipated meaningful proof of “reliance” before civil recovery can be had under the Securities Exchange Act. The majority’s adoption of the fraud-on-the-market theory effectively eviscerates the reliance rule in actions brought under Rule 10b-5, and negates congressional intent to the contrary expressed during adoption of the 1934 Act. B A second congressional policy that the majority’s opinion ignores is the strong preference the securities laws display for widespread public disclosure and distribution to investors of material information concerning securities. This congressionally adopted policy is expressed in the numerous and varied disclosure requirements found in the federal securities 8 See Stock Exchange Practices, Hearings on S. Res. 84, 56, and 97 before the Senate Committee on Banking and Currency, 73d Cong., 2d Sess., pt. 15, p. 6638 (1934) (statement of Richard Whitney, President of the New York Stock Exchange); Stock Exchange Regulation, Hearing on H. R. 7852 and 8720, before the House Committee on Interstate and Foreign Commerce, 73d Cong., 2d Sess., 226 (1934) (statement of Richard Whitney). BASIC INC. v. LEVINSON 259 224 Opinion of White, J. law scheme. See, e. g., 15 U. S. C. §§78m, 78o(d) (1982 ed. and Supp. IV). Yet observers in this field have acknowledged that the fraud-on-the-market theory is at odds with the federal policy favoring disclosure. See, e. g., Black, 62 N. C. L. Rev., at 457-459. The conflict between Congress’ preference for disclosure and the fraud-on-the-market theory was well expressed by a jurist who rejected the latter in order to give force to the former: “[D]isclosure ... is crucial to the way in which the federal securities laws function. . . . [T]he federal securities laws are intended to put investors into a position from which they can help themselves by relying upon disclosures that others are obligated to make. This system is not furthered by allowing monetary recovery to those who refuse to look out for themselves. If we say that a plaintiff may recover in some circumstances even though he did not read and rely on the defendants’ public disclosures, then no one need pay attention to those disclosures and the method employed by Congress to achieve the objective of the 1934 Act is defeated.” Shores v. Sklar, 647 F. 2d, at 483 (Randall, J., dissenting). It is no surprise, then, that some of the same voices calling for acceptance of the fraud-on-the-market theory also favor dismantling the federal scheme which mandates disclosure. But to the extent that the federal courts must make a choice between preserving effective disclosure and trumpeting the new fraud-on-the-market hypothesis, I think Congress has spoken clearly—favoring the current prodisclosure policy. We should limit our role in interpreting § 10(b) and Rule 10b-5 to one of giving effect to such policy decisions by Congress. Ill Finally, the particular facts of this case make it an exceedingly poor candidate for the Court’s fraud-on-the-market the 260 OCTOBER TERM, 1987 Opinion of White, J. 485 U. S. ory, and illustrate the illogic achieved by that theory’s application in many cases. Respondents here are a class of sellers who sold Basic stock between October 1977 and December 1978, a 14-month period. At the time the class period began, Basic’s stock was trading at $20 a share (at the time, an all-time high); the last members of the class to sell their Basic stock got a price of just over $30 a share. App. 363, 423. It is indisputable that virtually every member of the class made money from his or her sale of Basic stock. The oddities of applying the fraud-on-the-market theory in this case are manifest. First, there are the facts that the plaintiffs are sellers and the class period is so lengthy—both are virtually without precedent in prior fraud-on-the-market cases.9 For reasons I discuss in the margin, I think these two facts render this case less apt to application of the fraud-on-the-market hypothesis. Second, there is the fact that in this case, there is no evidence that petitioner Basic’s officials made the troublesome misstatements for the purpose of manipulating stock prices, or with any intent to engage in underhanded trading of Basic stock. Indeed, during the class period, petitioners do not 9 None of the Court of Appeals cases the Court cites as endorsing the fraud-on-the-market theory, ante, at 246-247, n. 24, involved seller-plaintiffs. Rather, all of these cases were brought by purchasers who bought securities in a short period following some material misstatement (or similar act) by an issuer, which was alleged to have falsely inflated a stock’s price. Even if the fraud-on-the-market theory provides a permissible link between such a misstatement and a decision to purchase a security shortly thereafter, surely that link is far more attenuated between misstatements made in October 1977, and a decision to sell a stock the following September, 11 months later. The fact that the plaintiff-class is one of sellers, and that the class period so long, distinguish this case from any other cited in the Court’s opinion, and make it an even poorer candidate for the fraud-on-the-market presumption. Cf., e. g., Schlanger v. Four-Phase Systems Inc., 555 F. Supp. 535 (SDNY 1982) (permitting class of sellers to use fraud-on-the-market theory where the class period was eight days long). BASIC INC. v. LEVINSON 261 224 Opinion of White, J. appear to have purchased or sold any Basic stock whatsoever. App. to Pet. for Cert. 27a. I agree with amicus who argues that “[i]mposition of damages liability under Rule 10b-5 makes little sense . . . where a defendant is neither a purchaser nor a seller of securities. ” See Brief for American Corporate Counsel Association as Amicus Curiae 13. In fact, in previous cases, we had recognized that Rule 10b-5 is concerned primarily with cases where the fraud is committed by one trading the security at issue. See, e. g., Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 736, n. 8 (1975). And it is difficult to square liability in this case with § 10(b)’s express provision that it prohibits fraud “in connection with the purchase or sale of any security.” See 15 U. S. C. § 78j(b) (emphasis added). Third, there are the peculiarities of what kinds of investors will be able to recover in this case. As I read the District Court’s class certification order, App. to Pet. for Cert. 123a-126a; ante, at 228-229, n. 5, there are potentially many persons who did not purchase Basic stock until after the first false statement (October 1977), but who nonetheless will be able to recover under the Court’s fraud-on-the-market theory. Thus, it is possible that a person who heard the first corporate misstatement and disbelieved it—i. e., someone who purchased Basic stock thinking that petitioners’ statement was false—may still be included in the plaintiff-class on remand. How a person who undertook such a speculative stock-investing strategy—and made $10 a share doing so (if he bought on October 22, 1977, and sold on December 15, 1978)—can say that he was “defrauded” by virtue of his reliance on the “integrity” of the market price is beyond me.10 10 The Court recognizes that a person who sold his Basic shares believing petitioners’ statements to be false may not be entitled to recovery. Ante, at 249. Yet it seems just as clear to me that one who bought Basic stock under this same belief—hoping to profit from the uncertainty over Basic’s merger plans—should not be permitted to recover either. 262 OCTOBER TERM, 1987 Opinion of White, J. 485 U. S. And such speculators may not be uncommon, at least in this case. See App. to Pet. for Cert. 125a. Indeed, the facts of this case lead a casual observer to the almost inescapable conclusion that many of those who bought or sold Basic stock during the period in question flatly disbelieved the statements which are alleged to have been “materially misleading.” Despite three statements denying that merger negotiations were underway, Basic stock hit record-high after record-high during the 14-month class period. It seems quite possible that, like Casca’s knowing disbelief of Caesar’s “thrice refusal” of the Crown,11 clever investors were skeptical of petitioners’ three denials that merger talks were going on. Yet such investors, the sav-viest of the savvy, will be able to recover under the Court’s opinion, as long as they now claim that they believed in the “integrity of the market price” when they sold their stock (between September and December 1978).11 12 Thus, persons who bought after hearing and relying on the falsity of petitioners’ statements may be able to prevail and recover money damages on remand. And who will pay the judgments won in such actions? I suspect that all too often the majority’s rule will “lead to large judgments, payable in the last analysis by innocent investors, for the benefit of speculators and their lawyers.” Cf. SEC v. Texas Gulf Sulphur Co., 401 F. 2d 833, 867 (CA2 1968) (en banc) (Friendly, J., concurring), cert, denied, 394 U. S. 976 (1969). This Court and others have previously recognized that “inexorably broadening. . . the class of plaintiffs] who may sue in this area of the law will ultimately result in more harm than good.” Blue Chip Stamps v. Manor Drug Stores, supra, at 747-748. See also Ernst & Ernst v. Hochfelder, 425 U. S., at 214; Ultramares Corp. v. Touche, 11 See W. Shakespeare, Julius Caesar, Act I, Scene IL 12 The ease with which such a post hoc claim of “reliance on the integrity of the market price” can be made, and gain acceptance by a trial court, is illustrated by Abrams v. Johns-Manville Corp., discussed in n. 3, supra. BASIC INC. v. LEVINSON 263 224 Opinion of White, J. 255 N. Y. 170, 179-180, 174 N. E. 441, 444-445 (1931) (Cardozo, C. J.). Yet such a bitter harvest is likely to be the reaped from the seeds sewn by the Court’s decision today. IV In sum, I think the Court’s embracement of the fraud-on-the-market theory represents a departure in securities law that we are ill suited to commence—and even less equipped to control as it proceeds. As a result, I must respectfully dissent. 264 OCTOBER TERM, 1987 Per Curiam 485 U. S. HAIG et al. v. BISSONETTE et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 86-987. Decided March 21, 1988 800 F. 2d 812, affirmed for absence of quorum. Per Curiam. Because the Court lacks a quorum, 28 U. S. C. § 1, and since a majority of the qualified Justices are of the opinion that the case cannot be heard and determined at the next Term of the Court, the judgment of the United States Court of Appeals for the Eighth Circuit is affirmed under 28 U. S. C. §2109, which provides that under these circumstances the Court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided Court. The Chief Justice, Justice O’Connor, Justice Scalia, and Justice Kennedy took no part in this decision. BUCHANAN v. STANSHIPS, INC. 265 Per Curiam BUCHANAN v. STANSHIPS, INC., et al. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 87-133. Decided March 21, 1988 Petitioners filed a wrongful-death action against respondents under the Death on the High Seas Act (Act). This Act contains no provision regarding costs, and the District Court’s judgment for respondents did not mention costs. After petitioners filed a notice of appeal, respondents filed an application for costs styled as a “Motion to Amend or Alter Judgment” under Federal Rule of Civil Procedure 59(e), which the District Court granted. Petitioners did not file a second notice of appeal. The Court of Appeals dismissed petitioners’ appeal for failure to file a timely appeal because, under Federal Rule of Appellate Procedure 4(a)(4), a notice of appeal filed before the disposition of a Rule 59(e) motion has no effect, and a “new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion.” Held: A prevailing party’s motion for costs in a wrongful-death action brought under the Death on the High Seas Act does not constitute a Rule 59 motion rendering ineffective a notice of appeal filed prior to the disposition of that motion. Rule 59(e) generally is invoked only to support reconsideration of matters encompassed in the decision on the merits, not when a party is seeking what is due because of the judgment. Because the Act does not provide for costs, respondents’ motion for costs raised issues wholly collateral to the judgment on the main cause of action and is properly viewed as a motion for costs to a prevailing party under Federal Rule of Civil Procedure 54(d). The incorrect designation of respondents’ Rule 54(d) motion as a Rule 59(e) motion cannot change this fact or deprive petitioners of the benefit of their timely notice of appeal. Certiorari granted; reversed and remanded. Per Curiam. Federal Rule of Appellate Procedure 4(a)(4) provides that if any party files a timely motion “under Rule 59 [of the Federal Rules of Civil Procedure] to alter or amend the judgment,” then the time for appeal “shall run from the entry of the order. . . granting or denying” such a motion. The Rule specifically indicates that a notice of appeal filed before the 266 OCTOBER TERM, 1987 Per Curiam 485 U. S. disposition of such a motion “shall have no effect” but that a “new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion.” In this case, we are asked to determine whether a prevailing party’s motion for costs constitutes a Rule 59 motion and thereby renders ineffective a notice of appeal filed prior to the disposition of that motion. I Petitioners, a widow and her minor child, brought this wrongful-death action against respondents in the United States District Court for the Middle District of Louisiana under the Death on the High Seas Act, ch. Ill, 41 Stat. 537, 46 U. S. C. §761 et seq. The court initially granted summary judgment for respondents, but the Court of Appeals for the Fifth Circuit reversed this ruling. 744 F. 2d 1070 (1984). On remand, the District Court conducted a bench trial. Then, on January 26, 1987, the court entered judgment in favor of respondents, dismissing petitioners’ suit with prejudice. Pet. for Cert. 15. The judgment made no mention of costs. The next day petitioners filed a notice of appeal in the District Court pursuant to Federal Rule of Appellate Procedure 3. Id., at 16. On January 29, 1987, respondents filed an application for the allowance of costs, styled as a “Motion to Alter or Amend Judgment.” Id., at 17. The motion asked that the District Court “amend its judgment” to reflect that respondents were “entitled to recover their taxable costs,” and specifically invoked Rule 59 of the Federal Rules of Civil Procedure. Ibid. The District Court issued an order granting respondents’ request the next day. Id., at 18. Petitioners did not file a second notice of appeal following the District Court’s order granting respondents’ motion. Respondents subsequently moved the Court of Appeals to dismiss petitioners’ appeal for lack of subject-matter jurisdiction due to failure to file a timely notice of appeal. Id., at 19. BUCHANAN v. STANSHIPS, INC. 267 265 Per Curiam Respondents argued that Rule 4(a)(4) of the Federal Rules of Appellate Procedure rendered petitioners’ first notice of appeal void because the motion for the allowance of costs was a Rule 59(e) motion. Relying on its prior decision in Harcon Barge Co. v. D & G Boat Rentals, Inc., 784 F. 2d 665 (CA5) (en banc), cert, denied, 479 U. S. 930 (1986), the Court of Appeals agreed and dismissed petitioners’ appeal. Pet. for Cert. 25. See also Charles v. Daley, 799 F. 2d 343, 347 (CA7 1986) (adopting the analysis of Harcon Barge). Petitioners seek certiorari, noting that the Court of Appeals’ decision is in tension with our decision in White v. New Hampshire Dept, of Employment Security, 455 U. S. 445 (1982), and in conflict with decisions of the Ninth Circuit and the Eleventh Circuit, see Durham v. Kelly, 810 F. 2d 1500 (CA9 1987); Alimenta (U. S. A.), Inc. n. Anheuser-Busch Cos., 803 F. 2d 1160 (CA11 1986); Lucas v. Florida Power & Light Co., 12S F. 2d 1300 (CA11 1984). II Federal Rule of Civil Procedure 59(e) concerns “motion[s] to alter or amend the judgment.” The Rule requires that such motions be filed within 10 days of the initial entry of judgment. “[T]he federal courts generally have invoked Rule 59(e) only to support reconsideration of matters properly encompassed in a decision on the merits.” White, supra, at 451. In White, we held that a motion for attorney’s fees under 42 U. S. C. § 1988 was not a Rule 59(e) motion. We reasoned that because § 1988 provides for fees independently of the underlying cause of action and only for a “prevailing party,” a motion for fees required an inquiry “separate from the decision on the merits—an inquiry that cannot even commence until one party has ‘prevailed.’” 455 U. S., at 451-452. Cf. Budinich v. Becton Dickinson & Co., 807 F. 2d 155 (CAIO 1986) cert, granted, 484 U. S. 895 (1987) (presenting issue whether a different rule applies when fees are not provided for independently, as by § 1988, but as an aspect 268 OCTOBER TERM, 1987 Per Curiam 485 U. S. of the underlying action). Such a motion therefore “‘does not imply a change in the judgment, but merely seeks what is due because o/the judgment.’” 455 U. S., at 452 (emphasis added) (quoting Knighton n. Watkins, 616 F. 2d 795, 797 (CA5 1980)). Respondents’ postjudgment motion for costs similarly sought only what was due because of the judgment. Because the Death on the High Seas Act contains no provision regarding costs, respondents’ motion for costs necessarily was predicated on Federal Rule of Civil Procedure 54(d). Assessment of such costs does not involve reconsideration of any aspect of the decision on the merits. Under Rule 54(d), the “prevailing party” automatically is entitled to costs “unless the court otherwise directs.” Indeed, the Rule contemplates that applications for costs will be presented in the first instance not to the court but to the clerk; a district judge need not take up the issue at all unless the losing party makes a timely motion for judicial review. Fed. Rule Civ. Proc. 54(d) (“On motion served within 5 days [after the clerk’s taxing of costs], the action of the clerk may be reviewed by the court”); 10 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2679, p. 396 (2d ed. 1983). A sharp distinction between the judgment on the merits and an award of costs under Rule 54(d) also is evident in Rule 58’s instruction that “[e]ntry of the judgment shall not be delayed for the taxing of costs.” Thus it is apparent that the Rules “attemp[t] to divorce the process of entering judgment from that of determining and assessing the costs.” 10 Wright, Miller, & Kane, supra, §2679, p. 392. While a different issue may be presented if expenses of this sort were provided as an aspect of the underlying action, we are satisfied that a motion for costs filed pursuant to Rule 54(d) does not seek “to alter or amend the judgment” within the meaning of Rule 59(e). Instead, such a request for costs raises issues wholly collateral to the judgment in the main cause of action, issues to which Rule 59(e) BUCHANAN v. STANSHIPS, INC. 269 265 Marshall, J., dissenting was not intended to apply. White, supra, at 451. Cf. FCC n. League of Women Voters, 468 U. S. 364, 373-374, n. 10 (1984) (issue of entitlement to “attorney’s fees and costs” described as “wholly collateral” to judgment on the merits) (emphasis added); Eisen v. Carlisle & Jacquelin, 417 U. S. 156, 172 (1974) (order assigning costs held immediately appealable under the “collateral order” doctrine because it “involved a collateral matter unrelated to the merits”). Respondents’ inaccurate designation of their costs request as a Rule 59(e) motion cannot change this fact. Nor can respondents’ incorrect label deprive petitioners of the benefit of their timely notice of appeal. Because respondents’ motion, properly viewed, was a Rule 54(d) motion for costs rather than a Rule 59(e) motion to alter or amend a judgment, petitioners’ notice of appeal was timely under the Federal Rules of Appellate Procedure. Certiorari is therefore granted, the decision of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Marshall, dissenting. I continue to believe that it is unfair to litigants and damaging to the integrity and accuracy of this Court’s decisions to decide a case summarily without the benefit of full briefing on the merits of the question decided. See Commissioner v. McCoy, 484 U. S. 3, 7 (1987) (Marshall, J., dissenting); Montana v. Hall, 481 U. S. 400, 405 (1987) (Marshall, J., dissenting). The Rules of this Court encourage litigants filing petitions for certiorari to address whether plenary consideration of the case is appropriate and discourage detailed discussions on the merits. Respondents in this case followed that advice. Respondents filed a seven-page brief in opposition to the petition for certiorari, of which only four pages dealt with the issue whether a prevailing party’s motion for costs constitutes a Federal Rule of Civil Procedure 59(e) motion to alter or amend judgment. Respondents re 270 OCTOBER TERM, 1987 Marshall, J., dissenting 485 U. S. lied almost exclusively on the Fifth Circuit’s unanimous en banc decision in Harcon Barge Co. v. D & G Boat Rentals, Inc., 784 F. 2d 665 (1986), which this Court had declined to review. 479 U. S. 930 (1986). The Fifth Circuit’s decision in this case, applying the “bright-line rule” of Harcon, Pet. for Cert. 26, undoubtedly benefited from full briefing, something the Court today decides is unnecessary for its determination that the Fifth Circuit was wrong. It is my ongoing view that when the Court is considering a summary disposition of a case, it should at a minimum so inform the litigants and invite them to submit supplemental briefs on the merits. Such modest steps are necessary to ensure fair and reasoned decisionmaking. I dissent. GULFSTREAM AEROSPACE CORP. v. MAYACAMAS CORP. 271 Syllabus GULFSTREAM AEROSPACE CORP. v. MAYACAMAS CORP. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 86-1329. Argued December 7, 1987—Decided March 22, 1988 Petitioner sued respondent in state court for breach of contract. Respondent did not remove the action to federal court, but, one month later, filed a diversity action against petitioner in the Federal District Court for breach of the same contract. The District Court denied petitioner’s motion to stay or dismiss the action before it, finding that the facts of the case fell short of those necessary to justify the requested discontinuance under Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, which held that, in “exceptional” circumstances, a district court may stay or dismiss an action because of the pendency of similar state-court litigation. The Court of Appeals dismissed petitioner’s appeal for lack of jurisdiction, holding that neither 28 U. S. C. § 1291—which provides for appeals from “final decisions” of the district courts—nor § 1292(a)(1)—which authorizes appeals from interlocutory orders granting or denying injunctions—allowed an immediate appeal from the District Court’s order. The court also declined to treat petitioner’s notice of appeal as an application for a writ of mandamus under the All Writs Act. Held: 1. A district court order denying a motion to stay or dismiss an action when a similar suit is pending in state court is not immediately appealable under § 1291 or § 1292(a)(1). Pp. 275-288. (a) Since the order in question does not end the litigation but ensures that it will continue in the District Court, it is not appealable under § 1291. The order does not fall within the collateral-order exception to § 1291, since it fails to satisfy the exception’s “conclusiveness” requirement in that it is inherently tentative and not made with the expectation that it will be the final word on the subject addressed. Given both the nature of the factors to be considered under Colorado River and the natural tendency of courts to attempt to eliminate matters that need not be decided from their dockets, a district court usually will expect to revisit and reassess an order denying a stay in light of events occurring in the normal course of litigation. Pp. 275-278. (b) Since the order in question relates only to the conduct or progress of litigation before the District Court, it cannot be considered an in 272 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. junction appealable under § 1292(a)(1). Petitioner’s claim that the order is appealable pursuant to the doctrine of Enelow v. New York Life Ins. Co., 293 U. S. 379, and Ettelson v. Metropolitan Life Ins. Co., 317 U. S. 188, under which orders granting or denying stays of “legal” proceedings on “equitable” grounds were considered to be immediately appealable injunctions, is rejected. The Enelow-Ettelson doctrine is overruled since it is based on outmoded procedural differentiations and produces arbitrary and anomalous results in modern practice. Pp. 279-288. 2. Petitioner has failed to satisfy its burden of showing that the District Court’s refusal to order a stay or dismissal of the suit before it constituted an abuse of discretion sufficient to warrant the extraordinary remedy of mandamus in the Court of Appeals. Petitioner’s assertion that a party’s decision to spurn removal and bring a separate federal-court suit invariably constitutes “exceptional” circumstances warranting stay or dismissal under the Colorado River doctrine is rejected. Pp. 288-290. 806 F. 2d 928, affirmed. Marshall, J., delivered the opinion of the Court, in which all other Members joined, except Kennedy, J., who took no part in the consideration or decision of the case. Scalia, J., filed a concurring opinion, post, p. 290. Elliot L. Bien argued the cause and filed briefs for petitioner. Gregory H. Ward argued the cause for respondent. With him on the brief was James H. A. Pooley. Justice Marshall delivered the opinion of the Court. The primary issue in this case is whether a district court order denying a motion to stay or dismiss an action when a similar suit is pending in state court is immediately appealable. I Petitioner Gulfstream Aerospace Corporation and respondent Mayacamas Corporation entered into a contract under which respondent agreed to purchase an aircraft manufactured by petitioner. Respondent subsequently refused to make payments due, claiming that petitioner, by increasing GULFSTREAM AEROSPACE CORP. v. MAYACAMAS CORP. 273 271 Opinion of the Court the production and availability of its aircrafts, had frustrated respondent’s purpose in the transaction, which was to sell the aircraft when demand was high. Petitioner thereupon filed suit against respondent for breach of contract in the Superior Court of Chatham County, Georgia. Respondent, declining to remove this action to federal court, filed both an answer and a counterclaim. In addition, approximately one month after the commencement of petitioner’s state-court suit, respondent filed a diversity action against petitioner in the United States District Court for the Northern District of California. This action alleged breach of the same contract that formed the basis of petitioner’s state-court suit. Petitioner promptly moved for a stay or dismissal of the federal-court action pursuant to the doctrine of Colorado River Water Conservation Dist. n. United States, 424 U. S. 800 (1976). In Colorado River, we held that in “exceptional” circumstances, a federal district court may stay or dismiss an action solely because of the pendency of similar litigation in state court. Id., at 818; see Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U. S. 1, 13-19 (1983).1 Petitioner argued that the circumstances of this case supported a stay or dismissal of the federal-court action under Colorado River. The District Court disagreed. Finding that “the facts of this case fall short of those necessary to justify” the discontinuance of a federal-court proceeding under Colorado River, the District Court denied petitioner’s motion. See No. C 85-20658 RPA (ND Cal., Jan. 24, 1986). Petitioner filed a notice of appeal with the United States Court of Appeals for the Ninth Circuit, alleging that the * !The factors to be considered in determining whether any exceptional circumstances exist include the relative comprehensiveness, convenience, and progress of the state-court and federal-court actions. See, e. g., Arizona v. San Carlos Apache Tribe, 463 U. S. 545, 570 (1983). 274 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. Court of Appeals had jurisdiction over the appeal under either 28 U. S. C. §12912 or 28 U. S. C. § 1292(a)(1).3 Petitioner also requested the Court of Appeals, in the event it found that neither of these sections provided appellate jurisdiction, to treat the notice of appeal as an application for a writ of mandamus, brought pursuant to the All Writs Act, 28 U. S. C. § 1651,4 and to grant the application. The Court of Appeals dismissed the appeal for lack of jurisdiction, holding that neither § 1291 nor § 1292(a)(1) allowed an immediate appeal from the District Court’s order. 806 F. 2d 928, 929-930 (1987).5 The Court of Appeals then declined to treat petitioner’s notice of appeal as an application for mandamus on the ground that the District Court’s order would not cause “serious hardship or prejudice” to petitioner. Id., at 930. Finally, the Court of Appeals stated that even if the notice of appeal were to be treated as an application for mandamus, petitioner did not have a right to the writ because “[i]t was well within the district court’s discretion to deny” petitioner’s motion. Id., at 930-931. 2 Section 1291 provides, in pertinent part: “The courts of appeals . . . shall have jurisdiction of appeals from all final decisions of the district courts of the United States . . . except where a direct review may be had in the Supreme Court.” 3 Section 1292(a)(1) provides, in pertinent part: “[T]he courts of appeals shall have jurisdiction of appeals from: “(1) Interlocutory orders of the district courts of the United States . . . or of the judges thereof, granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court.” 4 The All Writs Act provides, in pertinent part: “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 5 One judge dissented from the dismissal for lack of jurisdiction. He stated that the District Court’s order was appealable under § 1292(a)(1). See 806 F. 2d, at 931 (Sneed, J.). He then noted that he would have affirmed the order. See ibid. GULFSTREAM AEROSPACE CORP. v. MAYACAMAS CORP. 275 271 Opinion of the Court We granted certiorari, 481 U. S. 1068 (1987), to resolve a division in the Circuits as to whether a district court’s denial of a motion to stay litigation pending the resolution of a similar proceeding in state court is immediately appealable.6 We now affirm. II Petitioner’s principal contention in this case is that the District Court’s order denying the motion to stay or dismiss the federal-court litigation is immediately appealable under § 1291. That section provides for appellate review of “final decisions” of the district courts. This Court long has stated that as a general rule a district court’s decision is appealable under this section only when the decision “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U. S. 229, 233 (1945).7 The order at issue in this case has no such effect: indeed, the order ensures that litigation will continue in the District Court. In Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541 (1949), however, we recognized a “small 6 Compare 806 F. 2d 928 (CA9 1987) (case below) (holding that a district court’s denial of a motion to stay an action pending resolution of a statecourt proceeding is not immediately appealable), with Microsoftware Computer Systems, Inc. v. Ontel Corp., 686 F. 2d 531 (CA7 1982) (holding that a district court’s denial of such a motion is immediately appealable under § 1292(a)(1)). 7 Justice Frankfurter, speaking for a unanimous Court, explained the rationale for this rule in Cobbledick v. United States, 309 U. S. 323, 325 (1940): “Since the right to a judgment from more than one court is a matter of grace and not a necessary ingredient of justice, Congress from the very beginning has, by forbidding piecemeal disposition on appeal of what for practical purposes is a single controversy, set itself against enfeebling judicial administration. Thereby is avoided the obstruction to just claims that would come from permitting the harassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise, from its initiation to entry of judgment. To be effective, judicial administration must not be leaden-footed. Its momentum would be arrested by permitting separate reviews of the component elements in a unified cause.” 276 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. class” of decisions that are appealable under § 1291 even though they do not terminate the underlying litigation. Id., at 546. We stated in Cohen that a district court’s decision is appealable under § 1291 if it “finally determined] claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Ibid. Petitioner asserts that the District Court’s decision in this case falls within Cohen’s “collateral order” doctrine. Since Cohen, we have had many occasions to revisit and refine the collateral-order exception to the final-judgment rule. We have articulated a three-pronged test to determine whether an order that does not finally resolve a litigation is nonetheless appealable under § 1291. See Coopers & Lybrand n. Livesay, 437 U. S. 463 (1978); see also, e. g., Richardson-Merrell Inc. n. Koller, 472 U. S. 424, 431 (1985); Firestone Tire & Rubber Co. v. Risjord, 449 U. S. 368, 375 (1981). First, the order must “conclusively determine the disputed question.” Coopers & Lybrand v. Livesay, 437 U. S., at 468. Second, the order must “resolve an important issue completely separate from the merits of the action.” Ibid. Third and finally, the order must be “effectively unre-viewable on appeal from a final judgment.” Ibid, (footnote omitted). If the order at issue fails to satisfy any one of these requirements, it is not appealable under the collateralorder exception to § 1291. This Court held in Moses H. Cone Memorial Hospital n. Mercury Construction Corp., 460 U. S. 1 (1983), that a district court order granting a stay of litigation pursuant to Colorado River meets each of the three requirements of the collateral-order doctrine and therefore is appealable under §1291. 460 U. S., at 11-13. In applying the collateralorder doctrine, we found that an order refusing to proceed with litigation because of the pendency of a similar action in state court satisfies the second and third prongs of the test. GULFSTREAM AEROSPACE CORP. v. MAYACAMAS CORP. 277 271 Opinion of the Court We stated that such an order “plainly presents an important issue separate from the merits” and that it would be “un-reviewable if not appealed now” because once the state court has decided the issues in the litigation, the federal court must give that determination res judicata effect. Id., at 12 (footnote omitted). The Court gave more extended treatment to the first requirement of the collateral-order doctrine that the order “conclusively determine the disputed question.” We contrasted two kinds of nonfinal orders: those that are “‘inherently tentative,’” id., at 12, n. 14, quoting Coopers & Lybrand v. Livesay, supra, at 469, n. 11, and those that, although technically amendable, are “made with the expectation that they will be the final word on the subject addressed,” 460 U. S., at 12, n. 14. We used the order challenged in Coopers & Lybrand v. Livesay, supra, which denied certification of a class, as an example of the kind of order that is inherently tentative because a district court ordinarily would expect to reassess and revise such an order in response to events occurring “in the ordinary course of litigation.” Moses H. Cone Memorial Hospital v. Mercury Construction Corp., supra, at 13, n. 14. We then stated that an order granting a stay of litigation in federal court pursuant to the doctrine of Colorado River was not of this tentative nature. An order granting a Colorado River stay, we noted, “necessarily contemplates that the federal court will have nothing further to do in resolving any substantive part of the case” because a district court may enter such an order only if it has full confidence that the parallel state proceeding will “be an adequate vehicle for the complete and prompt resolution of the issues between the parties.” 460 U. S., at 28; see id., at 13. Given that a district court normally would expect the order granting the stay to settle the matter for all time, the “conclusiveness” prong of the collateral-order doctrine is satisfied and the order is appealable under § 1291. Application of the collateral-order test to an order denying a motion to stay or dismiss an action pursuant to Colorado 278 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. River, however, leads to a different result. We need not decide whether the denial of such a motion satisfies the second and third prongs of the collateral-order test—the separability of the decision from the merits of the action and the reviewability of the decision on appeal from final judgment — because the order fails to meet the initial requirement of a conclusive determination of the disputed question. A district court that denies a Colorado River motion does not “necessarily contemplate” that the decision will close the matter for all time. In denying such a motion, the district court may well have determined only that it should await further developments before concluding that the balance of factors to be considered under Colorado River, see n. 1, supra, warrants a dismissal or stay. The district court, for example, may wish to see whether the state-court proceeding becomes more comprehensive than the federal-court action or whether the former begins to proceed at a more rapid pace. Thus, whereas the granting of a Colorado River motion necessarily implies an expectation that the state court will resolve the dispute, the denial of such a motion may indicate nothing more than that the district court is not completely confident of the propriety of a stay or dismissal at that time. Indeed, given both the nature of the factors to be considered under Colorado River and the natural tendency of courts to attempt to eliminate matters that need not be decided from their dockets, a district court usually will expect to revisit and reassess an order denying a stay in light of events occurring in the normal course of litigation. Because an order denying a Colorado River motion is “inherently tentative” in this critical sense— because it is not “made with the expectation that [it] will be the final word on the subject addressed”—the order is not a conclusive determination within the meaning of the collateral-order doctrine and therefore is not appealable under § 1291. GULFSTREAM AEROSPACE CORP. v. MAYACAMAS CORP. 279 271 Opinion of the Court III Petitioner argues in the alternative that the District Court’s order in this case is immediately appealable under § 1292(a)(1), which gives the courts of appeals jurisdiction of appeals from interlocutory orders granting or denying injunctions. An order by a federal court that relates only to the conduct or progress of litigation before that court ordinarily is not considered an injunction and therefore is not appealable under § 1292(a)(1). See Switzerland Cheese Assn., Inc. v. E. Home’s Market, Inc., 385 U. S. 23, 25 (1966); International Products Corp. n. Koons, 325 F. 2d 403, 406 (CA2 1963) (Friendly, J.). Under the Enelow-Ettelson doctrine, however, certain orders that stay or refuse to stay judicial proceedings are considered injunctions and therefore are immediately appealable. Petitioner asserts that the order in this case, which denied a motion for a stay of a federal-court action pending the resolution of a concurrent state-court proceeding, is appealable under § 1292(a)(1) pursuant to the Enelow-Ettelson doctrine. The line of cases we must examine to resolve this claim began some 50 years ago, when this Court decided Endow v. New York Life Ins. Co., 293 U. S. 379 (1935). At the time of that decision, law and equity remained separate jurisprudential systems in the federal courts. The same judges administered both these systems, however, so that a federal district judge was both a chancellor in equity and a judge at law. In Endow, the plaintiff sued at law to recover on a life insurance policy. The insurance company raised the affirmative defense that the policy had been obtained by fraud and moved the District Court to stay the trial of the law action pending resolution of this equitable defense. The District Court granted this motion, and the plaintiff appealed. This Court likened the stay to an injunction issued by an equity court to restrain an action at law. The Court stated: “[T]he grant or refusal of... a stay by a court of equity of proceedings at law is a grant or refusal of an injunction 280 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. within the meaning of [the statute.] And, in this aspect, it makes no difference that the two cases, the suit in equity for an injunction and the action at law in which proceedings are stayed, are both pending in the same court, in view of the established distinction between ‘proceedings at law and proceedings in equity in the national courts . . . “It is thus apparent that when an order or decree is made . . . requiring, or refusing to require, that an equitable defense shall first be tried, the court, exercising what is essentially an equitable jurisdiction, in effect grants or refuses an injunction restraining proceedings at law precisely as if the court had acted upon a bill of complaint in a separate suit for the same purpose.” Id., at 382-383. The Court thus concluded that the District Court’s order was appealable under § 1292(a)(1). In Ettelson v. Metropolitan Life Ins. Co., 317 U. S. 188 (1942), the Court reaffirmed the rule of Enelow, notwithstanding that the Federal Rules of Civil Procedure had fully merged law and equity in the interim. The relevant facts of Ettelson were identical to those of Enelow, and the Court responded to them in the same fashion. In response to the argument that the fusion of law and equity had destroyed the analogy between the stay ordered in the action and an injunction issued by a chancellor of a separate proceeding at law, the Court stated only that the plaintiffs were “in no different position than if a state equity court had restrained them from proceeding in the law action.” 317 U. S., at 192. Thus, the order granting the stay was held to be immediately appealable as an injunction. The historical analysis underlying the results in Enelow and Ettelson has bred a doctrine of curious contours. Under the Enelow-Ettelson rule, most recently restated in Balti- GULFSTREAM AEROSPACE CORP. v. MAYACAMAS CORP. 281 271 Opinion of the. Court more Contractors, Inc. v. Bodinger, 348 U. S. 176 (1955), an order by a federal court staying or refusing to stay its own proceedings is appealable under § 1292(a)(1) as the grant or denial of an injunction if two conditions are met. First, the action in which the order is entered must be an action that, before the merger of law and equity, was by its nature an action at law. Second, the order must arise from or be based on some matter that would then have been considered an equitable defense or counterclaim. If both conditions are satisfied, the historical equivalent of the modern order would have been an injunction, issued by a separate equity court, to restrain proceedings in an action at law. If either condition is not met, however, the historical analogy fails. When the underlying suit is historically equitable and the stay is based on a defense or counterclaim that is historically legal, the analogy fails because a law judge had no power to issue an injunction restraining equitable proceedings. And when both the underlying suit and the defense or counterclaim on which the stay is based are historically equitable, or when both are historically legal, the analogy fails because when a chancellor or a law judge stayed an action in his own court, he was not issuing an injunction, but merely arranging matters on his docket. Thus, unless a stay order is made in a historically legal action on the basis of a historically equitable defense or counterclaim, the order cannot be analogized to a premerger injunction and therefore cannot be appealed under § 1292(a)(1) pursuant to the Enelow-Ettelson doctrine. The parties in this case dispute whether the Enelow-Ettelson rule makes the District Court’s decision to deny a stay immediately appealable under § 1292(a)(1). Both parties agree that an action for breach of contract was an action at law prior to the merger of law and equity. They vigorously contest, however, whether the stay of an action pending the resolution of similar proceedings in a state court is equitable in the requisite sense. Petitioner relies primarily on the decision of the United States Court of Appeals for the 282 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. Seventh Circuit in Microsoftware Computer Systems, Inc. v. Ontel Corp., 686 F. 2d 531 (1982). That court held that a stay issued under Colorado River is based on the policy of avoiding “the unnecessary and wasteful duplication of lawsuits,” which is historically an equitable defense. 686 F. 2d, at 536. Respondent, on the other hand, urges us to adopt the reasoning of the Ninth Circuit in this case. In its decision, the court below drew a distinction between motions that raised equitable “defenses” and motions that raised equitable “considerations.” 806 F. 2d, at 929-930. The court held that a motion for a stay pursuant to Colorado River was based only on equitable considerations and that the Enelow-Ettelson rule therefore did not apply.8 We decline to address the issue of appealability in these terms; indeed, the sterility of the debate between the parties illustrates the need for a more fundamental consideration of the precedents in this area. This Court long has understood that the Enelow-Ettelson rule is deficient in utility and sense. In the two cases we have decided since Ettelson relating to the rule, we criticized its perpetuation of “outmoded procedural differentiations” and its consequent tendency to produce incongruous results. Baltimore Contractors, Inc. v. Bodinger, supra, at 184; see Morgantown v. Royal Ins. Co., 337 U. S. 254, 257-258 (1949). We refrained then from overruling the Endow and Ettelson decisions,9 but today we take 8Accord, Gold v. Johns-Manville Sales Corp., 723 F. 2d 1068, 1073 (CA3 1983) (holding that stays issued to avoid duplicative litigation are not based on equitable defenses and therefore are not appealable under § 1292(a)(1)); Andrews v. Southern Discount Co. of Georgia, 662 F. 2d 722, 724 (CA111981) (same); Jackson Brewing Co. n. Clarke, 303 F. 2d 844, 846 (CA5) (same), cert, denied, 371 U. S. 891 (1962). 9 A dissenting opinion in Morgantown accused the majority of having overruled Endow and Ettelson. See Morgantown v. Royal Ins. Co., 337 U. S., at 261-263 (Black, J., dissenting). The Court in Baltimore Contractors, however, interpreted Morgantown as having left the Enelow-Ettelson doctrine intact and itself declined to overturn the rule. See Baltimore Contractors, Inc. v. Bodinger, 348 U. S., at 184-185. GULFSTREAM AEROSPACE CORP. v. MAYACAMAS CORP. 283 271 Opinion of the Court that step. A half century’s experience has persuaded us, as it has persuaded an impressive array of judges and commentators, that the rule is unsound in theory, unworkable and arbitrary in practice, and unnecessary to achieve any legitimate goals. As an initial matter, the Enelow-Ettelson doctrine is, in the modern world of litigation, a total fiction. Even when the rule was announced, it was artificial. Although at that time law and equity remained two separate systems, they were administered by the same judges. When a single official was both chancellor and law judge, a stay of an action at law on equitable grounds required nothing more than an order issued by the official regulating the progress of the litigation before him, and the decision to call this order an injunction just because it would have been an injunction in a system with separate law and equity judges had little justification. With the merger of law and equity, which was accomplished by the Federal Rules of Civil Procedure, the practice of describing these stays as injunctions lost all connection with the reality of the federal courts’ procedural system. As Judge Charles Clark, the principal draftsman of the Rules, wrote: “[W]e lack any rationale to explain the concept of a judge enjoining himself when he merely decides upon the method he will follow in trying the case. The metamorphosis of a law judge into a hostile chancellor on the other ‘side’ of the court could not have been overclear to the lay litigant under the divided procedure; but if now without even that fictitious sea change one judge in one form of action may split his judicial self at one instant into two mutually antagonistic parts, the litigant surely will think himself in Alice’s Wonderland.” Beaunit Mills, Inc. v. Eday Fabric Sales Corp., 124 F. 2d 563, 565 (CA2 1942). The Enelow rule had presupposed two different systems of justice administered by separate tribunals, even if these tri 284 OCTOBER TERM, 1987 Opinion of the Court 485 U. S. bunals were no more than two “sides” to the same court; with the abandonment of that separation, the premise of the rule disappeared. The doctrine, and the distinctions it drew between equitable and legal actions and defenses, lost all moorings to the actual practice of the federal courts. The artificiality of the Enelow-Ettelson doctrine is not merely an intellectual infelicity; the gulf between the historical procedures underlying the rule and the modern procedures of federal courts renders the rule hopelessly unworkable in operation. The decisions in Endow and Ettelson treated as straightforward the questions whether the underlying suit, on the one hand, and the motion for a stay, on the other, would properly have been brought in a court of equity or in a court of law. Experience since the merger of law and equity, however, has shown that both questions are frequently difficult and sometimes insoluble. Suits that involve diverse claims and request diverse forms of relief often are not easily categorized as equitable or legal. As one Court of Appeals complained in handling such a suit, “Enelow-Ettelson is virtually impossible to apply to a complaint... in which the averments and prayers are a purée of legal and equitable theories and of claims that had no antecedents in the old bifurcated system.” Danford v. Schwabacher, 488 F. 2d 454, 456 (CA9 1973). Actions for declaratory judgments are neither legal nor equitable, and courts have therefore had to look to the kind of action that would have been brought had Congress not provided the declaratory judgment remedy. Thus, the rule has placed courts “in the unenviable position not only of solving modem procedural problems by the application of labels which have no currency, but also of considering the nature of law suits which were never brought.” Diematic Manufacturing Corp. v. Packaging Industries, Inc., 516 F. 2d 975, 9782 U. S. C. §1981.— Case is restored to Supreme Court’s calendar for reargument whether interpretation of § 1981 adopted in Runyon v. McCrary, 427 U. S. 160, should be reconsidered. Patterson v. McLean Credit Union, p. 617. CIVIL RIGHTS ACT OF 1871. City’s liability—Definition of policymaker.— Court of Appeals’ judgment affirming judgment entered on a verdict holding petitioner city liable under 42 U. S. C. § 1983 for retaliatory personnel decisions against respondent by his supervisors in violation of his First Amendment rights, which was based on a test under which a “policymaker” is one whose employment decisions are final in sense that they are not subjected to de novo review by higher ranking officials, is reversed. St. Louis v. Praprotnik, p. 112. CIVIL SERVICE REFORM ACT OF 1978. Collective bargaining involving agency rule or regulation—Compelling need determination. —Where Act exempts federal agencies from duty to bargain with labor unions when an agency rule or regulation is involved unless Federal Labor Regulatory Authority determines that there is no compelling need for said rule, § 7117(b) of Act provides exclusive procedure for making a compelling need determination, and such a determination cannot be made in connection with an unfair labor practice proceeding. FLRA v. Aberdeen Proving Ground, p. 409. COASTLINE. See State Boundaries. COLLATERAL-ORDER EXCEPTION TO FINAL-JUDGMENT RULE. See Appeals, 1. COLLECTIVE BARGAINING. See Civil Service Reform Act of 1978. 1066 INDEX COLLECTIVE-BARGAINING REPRESENTATIVE. See Railway Labor Act. COLORADO RIVER DOCTRINE. See Mandamus. COMPACTS BETWEEN STATES. Pecos River Compact—Special Master's report—River Master's appointment. —Special Master’s report concerning New Mexico’s obligation to deliver water to Texas under Compact terms is approved, and a River Master is appointed. Texas v. New Mexico, p. 388. CONSTITUTIONAL LAW. See also Estate Taxes; Justiciability; Standing to Sue; Supreme Court, 4. I. Due Process. 1. Contempt of court order to pay child support. —Where respondent was adjudged in contempt of state-court child support order and was put on probation and ordered to pay an arrearage, question whether legislative presumption that shifted to respondent burden of proving financial inability to pay violated Due Process Clause is remanded, since disposition of case turns on whether relief afforded is criminal or—if payment of arrearage would purge respondent’s contempt judgment—civil in nature. Hicks v. Feiock, p. 624. 2. Probate code—Nonclaim statute—Actual notice required.— Oklahoma’s nonclaim statute—which provides that creditors’ claims against an estate are generally barred unless they are presented to executor or executrix within two months of publication of notice of commencement of probate proceedings — is not a self-executing statute of limitations but operates in conjunction with state probate proceedings to “adversely affect” appellant creditor’s property interest; thus, Due Process Clause of Fourteenth Amendment requires that appellant be given actual notice by mail or other such means if appellant’s identity was known or was “reasonably ascertainable” by appellee executrix. Tulsa Professional Collection Services, Inc. v. Pope, p. 478. 3. Rent control ordinance—Fixing reasonable rent—Provision in city’s rent control ordinance allowing a hearing officer to consider a tenant’s hardship in fixing a reasonable rent does not render ordinance facially invalid under Due Process Clause because ordinance’s scheme represents a rational attempt to accommodate conflicting interests of protecting tenants from burdensome rent increases while insuring that landlords are guaranteed a fair return on their investment. Pennell v. San Jose, p. 1. 4. Review of default judgment—State-law meritorious defense requirement.—Dae Process Clause is violated by a Texas law requirement that an individual bringing a bill of review proceeding to challenge a default INDEX 1067 CONSTITUTIONAL LAW-Continued. judgment for invalid personal service or notice must show a meritorious defense to action in which judgment was entered. Peralta v. Heights Medical Center, Inc., p. 80. II. Equal Protection of the Laws. 1. Foreign embassies—Labor picketing.—District of Columbia Code § 22-1116—which excludes labor picketing from general prohibitions against congregating or displaying signs that would bring foreign government into public odium or disrepute within 500 feet of foreign embassies — does not require unequal treatment of nonlabor and labor picketing in violation of the Equal Protection Clause, since §22-1116’s primary function of ensuring that display clause did not prohibit labor picketing has been pre-empted by this Court’s conclusion that that clause violates First Amendment; and since, under Court of Appeals’ construction that congregation clause applies only to congregations that threaten an embassy’s peace or security, any peaceful congregation, including a peaceful labor congregation, is permitted. Boos v. Barry, p. 312. 2. Rent control ordinance—Rational relationship to legitimate state purpose.— City’s rent control ordinance allowing a hearing officer to consider a tenant’s hardship in fixing reasonable rent, on its face, does not violate Equal Protection Clause where its scheme is rationally related to legitimate purpose of protecting tenants, and it is not irrational to treat landlords differently on basis of whether or not they have hardship tenants. Pennell v. San Jose, p. 1. 3. Striking workers—Eligibility for food stamps. — Section 109 of Omnibus Budget Reconciliation Act of 1981—which provides that no household may become eligible to participate in food stamp program while any of its members is on strike or may receive an increase in food stamp allotment because of decrease in striking member’s income—does not violate equal protection component of Fifth Amendment, since it is rationally related to legitimate governmental objective of avoiding undue favoritism in private labor disputes. Lyng v. Automobile Workers, p. 360. III. Freedom of Assembly. Foreign embassies—Congregating and refusing to disperse. — Congregation clause of District of Columbia Code §22-1115—which prohibits three or more persons from congregating within 500 feet of an embassy and refusing to obey a police dispersal order—is not facially violative of First Amendment under Court of Appeals’ narrowing construction that clause permits dispersal only of congregations that are directed at an embassy and only when police reasonably believe that embassy’s “security or peace” is threatened. Boos v. Barry, p. 312. 1068 INDEX CONSTITUTIONAL LAW-Continued. IV. Freedom of Association and Expression. Striking workers—Eligibility for food stamps.—Section 109 of Omnibus Budget Reconciliation Act of 1981—which provides that no household may become eligible to participate in food stamp program while any of its members is on strike or may receive an increase in food stamp allotment because of decrease in striking member’s income—(1) does not violate First Amendment right of appellees, striking workers, to associate with their families or associational rights of appellees and their unions, and (2) does not abridge appellees’ right to express themselves about union matters free of coercion by Government. Lyng v. Autombile Workers, p. 360. V. Freedom of Religion. 1. Indians’ rights—Effect of road building and timber harvesting on religious sites.—Free Exercise Clause does not prohibit Forest Service from constructing a road or permitting timber harvesting in part of Six Rivers National Forest used by Indians for spiritual activities, especially where Government has taken steps to minimize impact of construction on Indian religious activities in accordance with American Indian Religious Freedom Act. Lyng v. Northwest Indian Cemetery Protective Assn., p. 439. 2. Unemployment compensation benefits—Religious use of peyote.— Where respondent drug and alcohol rehabilitation counselors were discharged for having ingested peyote, a hallucinogenic, during a religious ceremony of Native American Church, Oregon Supreme Court must make definitive ruling whether religious use of peyote is legal when, under state law, peyote possession is a felony, before federal constitutional issue— whether denial of unemployment compensation unduly burdened respondents’ religious freedom under First Amendment—can be decided. Employment Division, Oregon Dept, of Human Resources v. Smith, p. 660. VI. Freedom of Speech. Foreign embassies —Displaying signs. —Display clause of District of Columbia Code § 22-1115—which makes it unlawful to display any sign within 500 feet of an embassy that tends to bring foreign government into “public odium” or “public disrepute”—is facially violative of First Amendment, since it is a content-based restriction on political speech in a public forum which is not narrowly tailored to serve a compelling state interest. Boos v. Barry, p. 312. VIL Freedom of the Press. Intentional infliction of emotional distress —“Actual malice” standard.— In order to protect free flow of ideas and opinions on matters of public interest and concern, First and Fourteenth Amendments prohibit public figures and public officials from recovering damages for tort of intentional infliction of emotional distress by reason of publication of a caricature such INDEX 1069 CONSTITUTIONAL LAW-Continued. as ad parody at issue without showing that publication contains a false statement of fact which was made with “actual malice.” Hustler Magazine, Inc. v. Falwell, p. 46. VIII. Intergovernmental Tax Immunity. Tax Equity and Fiscal Responsibility Act of 1982—Federal income tax on state bond interest.—Section 310(b)(1) of TEFRA—which permits Federal Government to tax as income interest earned on unregistered state and local government bonds—does not violate doctrine of intergovernmental tax immunity. South Carolina v. Baker, p. 505. IX. Privilege Against Self-Incrimination. Prosecutor’s comments about defendant’s failure to testify.— Where prosecutor’s closing-argument statement that defendant could have testified but did not is a fair response to defense counsel’s closing-argument remarks that government had not allowed defendant to explain his side of story, there is no violation of Fifth Amendment privilege against selfincrimination. United States v. Robinson, p. 25. X. States’ Powers. Tax Equity and Fiscal Responsibility Act of 1982—Federal income tax exemption for bonds.— Section 310(b)(1) of TEFRA—which removes federal income tax exemption for interest earned on publicly offered longterm bonds issued by state and local governments unless those bonds are issued in registered rather than bearer form—does not violate Tenth Amendment or constitutional principles of federalism by effectively compelling States to issue bonds in registered form. South Carolina v. Baker, p. 505. XL Supremacy Clause. Attachment of prisoner’s Social Security benefits.— Arkansas statute authorizing State to seize a prisoner’s Social Security benefits to help defray costs of maintaining its prison system violates Supremacy Clause because it permits State to attach funds that are exempt from legal process under 42 U. S. C. § 407(a). Bennett v. Arkansas, p. 395. CONSUMER BOYCOTT OF NEUTRAL EMPLOYER. See National Labor Relations Act. CONTEMPT OF COURT. See Constitutional Law, I, 1; Jurisdiction, 2. CONTENT-BASED RESTRICTION ON POLITICAL SPEECH. See Constitutional Law, VI. CORPORATIONS. See Income Taxes, 1. COURT OF INTERNATIONAL TRADE. See Jurisdiction, 1. 1070 INDEX COURTS OF APPEALS. See Appeals, 1; Mandamus; Supreme Court, 4. CREDITORS. See Bankruptcy Code; Constitutional Law, I, 2. CRIMINAL CONTEMPT OF COURT. See Constitutional Law, I, 1; Jurisdiction, 2. CRIMINAL LAW. See also Constitutional Law, 1,1; IX; Federal Rules of Evidence. Entrapment defense—Effect of denial of element of crime.— Even if a defendant in a federal criminal case denies one or more elements of a crime, he is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment. Mathews v. United States, p. 58. DAMAGES. See Constitutional Law, VII. DEFAULT JUDGMENT. See Constitutional Law, I, 4. DEFECTIVE SERVICE OF PROCESS. See Constitutional Law, I, 4. DEFICIT REDUCTION ACT OF 1984. See Estate Taxes. DEFRA. See Estate Taxes. DENATURALIZATION OF CITIZENS. See Immigration and Nationality Act. DEPORTATION PROCEEDINGS. See Board of Immigration Appeals; Judicial Review, 1. DISMISSAL OF SUIT. See Appeals, 1; Mandamus. DISTRICT COURTS. See Appeals, 1; Federal Rules of Evidence; Jurisdiction, 1; Mandamus; Social Security Act, 2; Supreme Court, 4. DISTRICT OF COLUMBIA. See Constitutional Law, II, 1; III; VI. DOCTRINE OF INTERGOVERNMENTAL TAX IMMUNITY. See Constitutional Law, VIII. DUE PROCESS. See Constitutional Law, I; Estate Taxes. EDUCATIONAL ASSISTANCE BENEFITS. See Veterans’ Benefits. ELIGIBILITY REQUIREMENTS FOR AID TO FAMILIES WITH DEPENDENT CHILDREN PROGRAM. See Social Security Act, 1. EMBASSIES. See Constitutional Law, II, 1; III; VI. EMERGENCY PETROLEUM ALLOCATION ACT. See Pre-emption of Puerto Rico Law by Federal Law. EMOTIONAL DISTRESS. See Constitutional Law, VII. INDEX 1071 EMPLOYER AND EMPLOYEES. See Civil Service Reform Act of 1978; Private Express Statutes; Railway Labor Act. ENERGY POLICY AND CONSERVATION ACT. See Pre-emption of Puerto Rico Law by Federal Law. ENTRAPMENT DEFENSE. See Criminal Law. EQUAL PROTECTION OF THE LAWS. See Constitutional Law, II; Estate Taxes. EQUITY INTEREST. See Bankruptcy Code. ESTATES. See Constitutional Law, I, 2. ESTATE TAXES. Exemption of public housing agency’s Project Notes—Constitutionality of Deficit Reduction Act of 19 84 (DEFRA).— Section 5(e) of Housing Act of 1937 does not exempt “Project Notes”—certain state and local public housing agency obligations—from federal estate taxation but only from federal income taxation; resolution of estate tax question obviates need to address whether § 641 of DEFRA—which eliminated purported estate tax exemption—denied appellees due process and equal protection under Fifth Amendment. United States v. Wells Fargo Bank, p. 351. EVIDENCE. See Federal Rules of Evidence; Veterans’ Benefits. FEDERAL DISTRICT COURTS. See Federal Rules of Evidence. FEDERAL EMPLOYER AND EMPLOYEES. See Civil Service Reform Act of 1978. FEDERAL ENERGY REGULATORY COMMISSION. See Preemption of State Law by Federal Law. FEDERAL ESTATE TAXES. See Estate Taxes. FEDERAL INCOME TAXES. See Constitutional Law, VIII; X; Estate Taxes; Income Taxes. FEDERAL LABOR REGULATORY AUTHORITY. See Civil Service Reform Act of 1978. FEDERAL RULES OF APPELLATE PROCEDURE. See Appeals, 2. FEDERAL RULES OF CIVIL PROCEDURE. See also Appeals, 2. Amendments to Rules, p. 1043. FEDERAL RULES OF CRIMINAL PROCEDURE. Amendments to Rules, p. 1057. FEDERAL RULES OF EVIDENCE. 1. Admissibility of “other crimes, wrongs, or acts. ”—Evidence of “other crimes, wrongs, or acts” used for a purpose other than proving a person’s 1072 INDEX FEDERAL RULES OF EVIDENCE-Continued. character may be admitted pursuant to Rule 404(b) if there is sufficient evidence to support a jury finding that a defendant committed such an act, and a district court need not make a preliminary finding that an “other act” has been proved by a preponderance of evidence. Huddleston v. United States, p. 681. 2. Amendments to Rules, p. 1049. FEDERAL-STATE RELATIONS. See Constitutional Law, VIII; X; XI; Pre-emption of State Law by Federal Law; State Boundaries. FIFTH AMENDMENT. See Constitutional Law, I, 3; II, 2, 3; IX; Estate Taxes; Justiciability. FINAL-JUDGMENT RULE. See Appeals, 1. FIRST AMENDMENT. See Constitutional Law, II, 1; III-V; VI; VII; National Labor Relations Act; Supreme Court, 4. FOOD STAMP PROGRAM. See Constitutional Law, II, 3; IV. FOREIGN EMBASSIES. See Constitutional Law, II, 1; III; VI. FOREST SERVICE. See Constitutional Law, V, 1; Supreme Court, 4. FOURTEENTH AMENDMENT. See Constitutional Law, I; II, 2; VII; Justiciability. FRAUD-ON-THE-MARKET THEORY. See Securities Regulation. FREEDOM OF ASSEMBLY. See Constitutional Law, III. FREEDOM OF ASSOCIATION. See Constitutional Law, IV. FREEDOM OF EXPRESSION. See Constitutional Law, IV. FREEDOM OF RELIGION. See Constitutional Law, V; Supreme Court, 4. FREEDOM OF SPEECH. See Constitutional Law, VI. FREEDOM OF THE PRESS. See Constitutional, VII. FREE EXERCISE CLAUSE. See Constitutional Law, V; Supreme Court, 4. GI BILL EDUCATIONAL ASSISTANCE BENEFITS. See Veterans’ Benefits. GOVERNMENT BONDS. See Constitutional Law, VIII; X. “GRAY-MARKET” GOODS. See Jurisdiction, 1. HALLUCINOGENIC USED FOR RELIGIOUS PURPOSES AS GROUNDS FOR DENIAL OF UNEMPLOYMENT COMPENSATION BENEFITS. See Constitutional Law, V, 2. INDEX 1073 HANDBILL DISTRIBUTION BY UNION. See National Labor Relations Act. HANDICAPPED PERSONS. See Veterans’ Benefits. HEALTH CARE SERVICES PROVIDERS. See Jurisdiction, 3. HOUSING ACT OF 1937. See Estate Taxes. IMMIGRATION AND NATIONALITY ACT. Denaturalization of citizen—Materiality requirement for false testimony. —Where § 1451(a) of Act provides for denaturalization of citizens whose citizenship orders and certificates of naturalization “were illegally procured or were procured by concealment of a material fact or by willful misrepresentation,” test of whether concealments or misrepresentations are “material” is whether they can be shown by clear, unequivocal, and convincing evidence to have been predictably capable of affecting Immigration and Naturalization Service’s decisions, and § 1101(f)(6)—which provides that a person be deemed not to be of good moral character if he “has given false testimony for the purpose of obtaining” immigration or naturalization benefits—does not impose a materiality requirement for false testimony for purposes of “illegally procured” provision. Kungys v. United States, p. 759. IMMIGRATION APPEALS. See Board of Immigration Appeals; Judicial Review, 1. IMPORTS. See Jurisdiction, 1. INCOME TAXES. See also Constitutional Law, Vili; X; Estate Taxes. 1. Agency—Relationship between corporation and partnership.— Where, in order to avoid Kentucky’s usury law limit on annual interest rate for noncorporate borrowers, partnerships formed to develop apartment complexes each entered into an agreement with respondent’s corporation providing (1) that corporation would hold title to property as partnership’s nominee and agent solely to secure financing, (2) that partnership would have sole control of and responsibility for complex, and (3) that partnership was principal landowner of property during financing, construction, and operation, partnerships were owners of complexes for federal income tax purposes, since in each instance their relationship with corporation was, in both form and substance, an agency with partnership as principal. Commissioner v. Bollinger, p. 340. 2. Capital assets —Taxpayer’s motivation for purchasing.—A taxpayer’s motivation in purchasing an assest is irrelevant to question whether asset is a “capital asset” within meaning of 26 U. S. C. § 1221. Arkansas Best Corp. v. Commissioner, p. 212. INCOME UNDER AID TO FAMILIES WITH DEPENDENT CHILDREN PROGRAM. See Social Security Act, 1. 1074 INDEX INDIANS. See Constitutional Law, V; Supreme Court, 4. INSTRUCTIONS TO JURY. See Criminal Law. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS. See Constitutional Law, VIL INTERGOVERNMENTAL TAX IMMUNITY. See Constitutional Law, VIII. INTERLOCUTORY ORDERS. See Appeals, 1. INTERNAL REVENUE CODE. See Estate Taxes; Income Taxes. INTERNATIONAL TRADE. See Jurisdiction, 1. INVALID JUDGMENT. See Constitutional Law, I, 4. JUDGMENTS. See Constitutional Law, I, 4; Supreme Court, 4. JUDICIAL REVIEW. See also Veterans’ Benefits. 1. Abuse-of-discretion standard—Board of Immigration Appeals.— Abuse-of-discretion standard of judicial review is appropriate where Board of Immigration Appeals’ denial of a motion to reopen deportation proceedings is based on its finding that movant has not introduced previously unavailable material evidence or, in an asylum application case, has not reasonably explained his failure to apply for asylum initially. INS v. Abudu, p. 94. 2. Administrative action by Veterans’ Administration (VA)—Conflict with Rehabilitation Act. —38 U. S. C. § 211(a)—which bars judicial review of VA Administrator’s decisions on any questions of law or fact under any VA-administered law providing benefits for veterans—does not foreclose from judicial review question whether VA’s alcoholism regulation—which classifies alcoholism as “willful misconduct”—violates Rehabilitation Act. Traynor v. Turnage, p. 535. JURISDICTION. 1. Challenge of trademark regulations.—In a suit claiming that trademark regulation regulating imports of “gray-market” goods is inconsistent with § 526 of Tariff Act of 1930, District Court had jurisdiction under 28 U. S. C. § 1331, and Court of International Trade did not have exclusive jurisdiction under 28 U. S. C. § 1581(i)(3) or § 1581(i)(4). K mart Corp. v. Cartier, Inc., p. 176. 2. Dismissal of writ of certiorari—Special prosecutor’s authority. — Where Solicitor General has denied a special prosecutor authority to represent United States before Supreme Court in a case seeking reinstatement of a criminal contempt judgment, prosecutor lacked such authority and writ of certiorari is dismissed for want of jurisdiction. United States v. Providence Journal Co., p. 693. INDEX 1075 JURISDICTION—Continued. 3. Provider Reimbursement Review Board—Medicare regulation challenge. —Provider Reimbursement Review Board may not decline to hear a health care services provider’s challenge to a Medicare regulation on ground that provider failed to contest regulation’s validity in cost report submitted to its fiscal intermediary. Bethesda Hospital Assn. v. Bowen, p. 399. JURY INSTRUCTIONS. See Criminal Law. JUSTICIABILITY. Rent control ordinance—Assertion of takings claim. — In an action challenging constitutionality of a city’s rent control ordinance, issue whether ordinance’s tenant hardship provision violates Takings Clause—by reducing, because of hardship, rent that would otherwise be reasonable, thus transferring landlord’s property to hardship tenants—is premature, since there is no evidence that hardship provision has ever been used to reduce rent below reasonable level and since provision does not require that hearing officer reduce rent on grounds of tenant hardship. Pennell v. San Jose, p. 1. LABOR PICKETING. See Constitutional Law, II, 1. LABOR UNIONS. See Civil Service Reform Act of 1978. LANDLORD AND TENANTS. See Constitutional Law, I, 3; II, 2; Justiciability; Standing to Sue. LOCAL GOVERNMENT BONDS. See Constitutional Law, VIII; X. LUMP-SUM PAYMENTS AS INCOME UNDER AID TO FAMILIES WITH DEPENDENT CHILDREN PROGRAM. See Social Security Act, 1. MAIL DELIVERY. See Private Express Statutes. MANDAMUS. Abuse of discretion—Exceptional circumstances.— District Court’s refusal to order a stay or dismissal of suit did not constitute an abuse of discretion sufficient to warrant extraordinary remedy of mandamus in Court of Appeals, since a party’s decision to spurn removal of pending state suit, choosing instead to bring a separate federal-court suit, does not invariably constitute “exceptional” circumstances warranting stay or dismissal under standard of Colorado River Water Conservation Dist. v. United States, 424 U. S. 800. Gulfstream Aerospace Corp. v. Mayacamas Corp., p. 271. MATERIALITY REQUIREMENT. See Securities Regulation. MEDICAID. See Mootness. MEDICARE. See Jurisdiction, 3. 1076 INDEX MICHIGAN PUBLIC SERVICE COMMISSION. See Pre-emption of State Law by Federal Law. MISSISSIPPI. See State Boundaries. MOOTNESS. Approval of Medicaid plan amendment. — Petitioner Secretary of Health and Human Services’ compliance with § 4106 of Omnibus Budget Reconciliation Act of 1987, which required that he retroactively approve a California Medicaid plan amendment, renders moot controversy regarding Secretary’s original rejection of amendment. Bowen v. Kizer, p. 386. MOTION FOR COSTS. See Appeals, 2. MOTION TO REOPEN DEPORTATION PROCEEDINGS. See Board of Immigration Appeals; Judicial Review, 1. MUNICIPAL BONDS. See Constitutional Law, VIII; X. NATIONAL FORESTS. See Constitutional Law, V, 1; Supreme Court, 4. NATIONAL LABOR RELATIONS ACT. Unfair labor practices —Union’s handbilling at shopping center.— Where a construction company building a department store in petitioner’s mall allegedly paid substandard wages, § 8(b)(4)(ii) of Act did not proscribe union’s peaceful handbilling, unaccompanied by picketing, urging a consumer boycott of stores in mall until petitioner promised that all mall construction would be done by contractors paying fair wages; this construction of Act makes it unnecessary to address serious First Amendment questions that would be raised by NLRB’s contrary interpretation. DeBartolo Corp. v. Florida Gulf Coast Building and Construction Trades Council, p. 568. NATIVE AMERICAN CHURCH. See Constitutional Law, V, 2. NATURAL GAS ACT OF 1938. See Pre-emption of State Law by Federal Law. NEW MEXICO. See Compacts Between States. NONCLAIM PROVISION OF PROBATE CODE. See Constitutional Law, I, 2. NONPRICE RESTRAINT OF TRADE. See Antitrust Acts. NOTICE OF APPEAL. See Appeals, 2. NOTICE REGULATION CONCERNING ELIGIBILITY REQUIREMENTS FOR AID TO FAMILIES WITH DEPENDENT CHILDREN PROGRAM. See Social Security Act, 1. INDEX 1077 NOTICE TO CREDITORS IN PROBATE PROCEEDINGS. See Constitutional Law, I, 2. OBRA. See Constitutional Law, II, 3; IV. OIL ALLOCATION AND PRICE REGULATION. See Pre-emption of Puerto Rico Law by Federal Law. OKLAHOMA. See Constitutional Law, I, 2. OMNIBUS BUDGET RECONCILIATION ACT OF 1981. See Constitutional Law, II, 3; IV. OMNIBUS BUDGET RECONCILIATION ACT OF 1987. See Mootness. OREGON. See Constitutional Law, V, 2. PARTNERSHIPS. See Income Taxes, 1. PAST-DUE SUPPLEMENTAL SECURITY INCOME BENEFITS. See Social Security Act, 2. PECOS RIVER COMPACT. See Compacts Between States. PERSONAL SERVICE. See Constitutional Law, I, 4. PETROLEUM ALLOCATION AND PRICE REGULATION. See Preemption of Puerto Rico Law by Federal Law. PEYOTE USE AS BASIS FOR DENIAL OF UNEMPLOYMENT COMPENSATION BENEFITS. See Constitutional Law, V, 2. PICKETING. See Constitutional Law, II, 1. POLITICAL SPEECH IN PUBLIC FORUM. See Constitutional Law, VI. POSTAL SERVICE. See Private Express Statutes. PRE-EMPTION OF PUERTO RICO LAW BY FEDERAL LAW. Petroleum regulations—Energy Policy and Conservation Act. —Puerto Rico Department of Consumer Affairs’ regulations governing petroleum allocation and pricing are not pre-empted by Congress’ decision to decontrol oil prices in Energy Policy and Conservation Act, since fact that Federal Government terminates or reduces its regulation of a field of commerce does not announce a new rule of burden shifting replacing normal need to find a federal intent to pre-empt with a need to find a federal intent to retransfer authority to States; test for pre-emption of Puerto Rico law is same as test for pre-emption of a State’s law. Puerto Rico Dept, of Consumer Affairs v. Isla Petroleum Corp., p. 495. 1078 INDEX PRE-EMPTION OF STATE LAW BY FEDERAL LAW. Public utilities—Natural Gas Act of 1938.— Michigan Public Service Commission regulation of respondent natural gas companies, under Michigan’s Public Utilities Securities Act, impinges on a field that Congress, through Natural Gas Act of 1938, intended Federal Energy Regulatory Commission to regulate exclusively; and Michigan Act, therefore, is preempted. Schneidewind v. ANR Pipeline Co., p. 293. PRICE RESTRAINT. See Antitrust Acts. PRISONERS’ RIGHTS. See Constitutional Law, XI. PRIVATE EXPRESS STATUTES. Delivery of unstamped letters through internal mail system.—State university’s delivery of union’s unstamped letters to university’s employees, as required by California Higher Education Employer-Employee Relations Act, would violate Private Express Statutes, which generally prohibit private carriage of letters over postal routes without payment of postage to United States Postal Service. Regents of University of California v. Public Employment Relations Bd., p. 589. PRIVILEGE AGAINST SELF-INCRIMINATION. See Constitutional Law, IX. PROBATE CODE. See Constitutional Law, I, 2. PROJECT NOTES ISSUED UNDER HOUSING ACT OF 1937. See Estate Taxes. PROVIDER REIMBURSEMENT REVIEW BOARD. See Jurisdiction, 3. PUBLIC FIGURES AND PUBLIC OFFICIALS. See Constitutional Law, VII. PUBLIC FORUM. See Constitutional Law, VI. PUBLIC HOUSING AGENCIES. See Estate Taxes. PUBLIC UTILITIES. See Pre-emption of State Law by Federal Law. PUERTO RICO. See Pre-emption of Puerto Rico Law by Federal Law. RAILWAY LABOR ACT. Union representation at company-level proceedings. — Act does not entitle a railroad employee to be represented at company-level grievance or disciplinary proceedings by a union other than his collective-bargaining representative. Landers v. National Railroad Passenger Corp., p. 652. REGISTERED BONDS. See Constitutional Law, VIII; X. REHABILITATION ACT. See Judicial Review, 2; Veterans’ Benefits. INDEX 1079 RENT CONTROL. See Constitutional Law, I, 3; II, 2; Standing to Sue. REOPENING DEPORTATION PROCEEDINGS. See Board of Immigration Appeals; Judicial Review, 1. REORGANIZATION PLAN. See Bankruptcy Code. RESTRAINT OF TRADE. See Antitrust Acts. RETROACTIVE SOCIAL SECURITY PAYMENTS AS INCOME UNDER AID TO FAMILIES WITH DEPENDENT CHILDREN PROGRAM. See Social Security Act, 1. RIPENESS FOR ADJUDICATION. See Justiciability. RIVER MASTER. See Compacts Between States. RULE 10b-5. See Securities Regulation. SEABED. See State Boundaries. SECTION 1981. See Civil Rights Act of 1866. SECTION 1983. See Civil Rights Act of 1871. SECURITIES AND EXCHANGE ACT OF 1934. See Securities Regulation. SECURITIES REGULATION. Shareholders’ suit—Rule 10b-5—Materiality test.—In a suit by shareholders alleging that they had sold stock at prices artificially depressed by company’s false or misleading statements denying ongoing merger negotiations, TSCY Industries, Inc. v. Northway, Inc. standard—whereby an omitted fact is material if there is a substantial likelihood that its disclosure would have been considered significant by a reasonable investor— is adopted for the § 10(b) and Rule 10b-5 context; both “agreement-in-principle” test and view that information concerning otherwise insignficant developments becomes material solely because of affirmative denial of their existence are rejected; materiality in a merger context depends on facts and is to be determined on a case-by-case basis; it is appropriate to apply a rebuttable presumption of reliance, supported in part by fraud-on-the-market theory. Basic Inc. v. Levinson, p. 224. SERVICE OF PROCESS. See Constitutional Law, I, 4. SHAREHOLDERS’ SUIT. See Securities Regulation. SHERMAN ACT. See Antitrust Acts. SIX RIVERS NATIONAL FOREST. See Constitutional Law, V, 1; Supreme Court, 4. 1080 INDEX SOCIAL SECURITY ACT. See also Constitutional Law, XI; Jurisdiction, 3. 1. Aid to Families with Dependent Children program—Eligibility requirements—Federal notice regulation.—Federal notice regulation— which requires that individuals be given information about conditions of AFDC eligibility—was not violated where respondent was not given notice of a new lump-sum rule under which her family was ruled ineligible for AFDC for number of months that lump-sum income from a retroactive social security payment would satisfy her family’s needs, since regulations simply require State to publish a general description of AFDC program’s basic structure and availability. Gardebring v. Jenkins, p. 415. 2. Supplemental security income—Payment of attorney’s fees from past-due benefits.— District Court does not have authority to order Secretary of Health and Human Services to withhold a portion of past-due supplemental security income benefits for payment of attorney’s fees received in judicial proceedings under Title XVI of Social Security Act. Bowen v. Galbreath, p. 74. SOLICITOR GENERAL. See Jurisdiction, 2. SPECIAL PROSECUTOR. See Jurisdiction, 2. STANDARD OF JUDICIAL REVIEW. See Judicial Review, 1. STANDING TO SUE. Challenge to rent control ordinance—Necessity for allegation that landlords have “hardship tenants.”—Since, when standing is challenged on basis of pleadings, all material allegations in complaint must be taken as true and construed in favor of complaining party, appellants—a landlord and an association of owners and lessors of real property who alleged that they were subject to a city’s rent control ordinance—had standing to challenge ordinance even though they did not allege that either landlord or association members had “hardship tenants” who might trigger ordinance’s hearing process or that they had been or would be aggrieved by a hearing officer’s decision that a proposed rent increase is unreasonable on ground of tenant hardship. Pennell v. San Jose, p. 1. STATE AND LOCAL GOVERNMENT BONDS. See Constitutional Law, VIII; X. STATE BOUNDARIES. Mississippi’s interest south of Mississippi Sound—Agreement on Mississippi Sound.— On present record in litigation concerning Alabama and Mississippi coastlines, extent of Mississippi’s interest in seabed south of Mississippi Sound—not a subject of current phase of litigation—is not determined, but leave is granted to parties to file complaints advancing such claims as they may have with respect to area south of Mississippi Sound INDEX 1081 STATE BOUNDARIES-Continued. and in vicinity of Chandeleur Sound; parties are in agreement as to Mississippi Sound and its boundaries. Alabama and Mississippi Boundary Case, p. 88. STATES’ POWERS. See Constitutional Law, X. STAYS. See Appeals, 1; Mandamus. STRIKING WORKERS’ ELIGIBILITY FOR FOOD STAMPS. See Constitutional Law, II, 3; IV. SUPPLEMENTAL SECURITY INCOME. See Social Security Act, 2. SUPREMACY CLAUSE. See Constitutional Law, XI. SUPREME COURT. See also Civil Rights Act of 1866; Jurisdiction, 2. 1. Amendments to Federal Rules of Civil Procedure, p. 1043. 2. Amendments to Federal Rules of Criminal Procedure, p. 1057. 3. Amendments to Federal Rules of Evidence, p. 1049. 4. First Amendment claim—Necessity for reaching constitutional issue.—In a suit challenging, on both First Amendment and statutory grounds, a Forest Service decision to construct a road and permit timber harvesting in a part of Six Rivers National Forest used for Indians’ spiritual activities, it would be inadvisable for this Court to vacate and remand without addressing constitutional claim on its merits because, although courts below did not articulate necessity for their constitutional holdings in keeping with principle requiring that courts reach such questions only when necessary, it appears reasonably likely that First Amendment issue was necessary to decisions below to support all of relief granted, and Government represented that it could cure statutory defects identified below. Lyng v. Northwest Indian Cemetery Protective Assn., p. 439. TAKING OF PROPERTY. See Justiciability. TARIFF ACT OF 1930. See Jurisdiction, 1. TAX EQUITY AND FISCAL RESPONSIBILITY ACT OF 1982. See Constitutional Law, VIII; X. TAXES. See Estate Taxes; Income Taxes. TAX IMMUNITY. See Constitutional Law, VIII. TEFRA. See Constitutional Law, VIII; X. TENTH AMENDMENT. See Constitutional Law, X. TEXAS. See Compacts Between States; Constitutional Law, I, 4. TIMELY NOTICE OF APPEAL. See Appeals, 2. TITLE XIII OF SOCIAL SECURITY ACT. See Jurisdiction, 3. 1082 INDEX TITLE XVI OF SOCIAL SECURITY ACT. See Social Security Act, 2. TORT OF INTENTIONAL INFLICTION OF EMOTIONAL DIS- TRESS. See Constitutional Law, VIL TRADEMARKS. See Jurisdiction, 1. TRADE RESTRAINTS. See Antitrust Acts. UNEMPLOYMENT COMPENSATION. See Constitutional Law, V, 2. UNFAIR LABOR PRACTICE CHARGE. See Civil Service Reform Act of 1978. UNIONS. See National Labor Relations Act; Private Express Statutes; Railway Labor Act. UNITED STATES FOREST SERVICE. See Constitutional Law, V, 1; Supreme Court, 4. UNITED STATES POSTAL SERVICE. See Private Express Statutes. UNREGISTERED BONDS. See Constitutional Law, VIII. UNSECURED CREDITORS. See Bankruptcy Code. VERTICAL RESTRAINT OF TRADE. See Antitrust Acts. VETERANS’ ADMINISTRATION. See Judicial Review, 2; Veterans’ Benefits. VETERANS’ BENEFITS. Educational assistance—Alcoholism as “willful misconduct”—Conflict with Rehabilitation Act. —Where time limit for exhausting GI Bill educational assistance benefits cannot be extended if veterans were prevented from using benefits by a physical or mental disorder resulting from their own “willful misconduct,” Veterans’ Administration’s characterization of alcoholism as “willful misconduct” does not violate § 504 of Rehabilitation Act. Traynor v. Turnage, p. 535. WATERS. See Compacts Between States; State Boundaries. WORDS AND PHRASES. 1. “Dissatisfied with a final determination of. . . its fiscal intermediary. ” 42 U. S. C. § 1395oo(a). Bethesda Hospital Assn. v. Bowen, p. 399. 2. “Exempt from all taxation.” §5(e), Housing Act of 1937, 42 U. S. C. § 1437i(b). United States v. Wells Fargo Bank, p. 351. 3. “False testimony.” Immigration and Nationality Act, 8 U. S. C. § 1101(f)(6). Kungys v. United States, p. 759. INDEX 1083 WORDS AND PHRASES-Continued. 4. “Restraint of trade.” Sherman Act, 15 U. S. C. § 1. Business Electronics Corp. v. Sharp Electronics Corp., p. 717. WORKERS’ ELIGIBILITY FOR FOOD STAMPS WHILE ON STRIKE. See Constitutional Law, II, 3; IV. WRIT OF CERTIORARI. See Jurisdiction, 2. WRIT OF MANDAMUS. See Mandamus. U.S. GOVERNMENT PRINTING OFFICE : 1991 0 - 213-138